REPORTS OF INTERNATIONAL
ARBITRAL AWARDS
RECUEIL DES SENTENCES
ARBITRALES
Aroa Mines Case (on merits)
1903
VOLUME IX pp. 402-445
NATIONS UNIES - UNITED NATIONS
Copyright (c) 2006
402
BRITISH-VENEZUELAN COMMISSION
AROA MINES (LIMITED) CASE — SUPPLEMENTARY CLAIM
(By the Umpire:)
Damages will not be allowed for injury to persons, or for injury to or wrongful
seizure of property of resident aliens committed by the troops of unsuccessful
rebels. 1
Interpretation of the meaning of the words " claim." " injury," " seizure," "justice," and " equity," as used in the protocol.
CONTENTION OF BRITISH AGENT
In supporting the claim of the Aroa mines for damages due to the action of
revolutionaries, it is desirable that the position taken up by His Majesty's
Government should be clearly stated and explained.
During the events which led to the signing of the protocol of February 13,
1903, and when a decision was necessary as to what demands ought to be made
on the Venezuelan Government, the question of damage due to the acts of
insurgents naturally became prominent. His Majesty's Government, having
carefully considered the past and present circumstances of Venezuela, which
are of a very exceptional kind, came to the conclusion that in dealing with
claims of this nature two alternative methods were possible:
(1) That foreign claimants should not receive compensation for damage
caused by revolutionaries.
(2) That if any foreign claimants received such compensation British subjects
should receive the same treatment.
Great Britain enjoys by treaty the advantages of the most-favored nation,
and for this as well as other reasons took the view stated above. To show that
His Majesty's Government had always consistently held this view, it may be
pointed out that in forwarding claims to the Venezuelan Government the British
minister had, long before the blockade, always asked that they should be settled
on the same principle as might be applied to other nations.
In the view of His Majesty's Government it was preferable that of the two
principles stated above No. 1 should be the one adopted, failing this it was
essential to secure the alternative. No. 2.
At the same time it was considered that, owing to the light in which revolutions had come to be regarded by the people of Venezuela, there would be
nothing contrary to justice in acting upon the latter principle.
The only way to give effect to these views seemed to be to obtain from Venezuela
an agreement wide enough to cover the second principle if it should become
necessary to act upon it.
His Majesty's Government have throughout acted consistently on these lines
and have made no secret of the position taken up by them on the matter.
Accordingly, upon the sitting of the Commission, His Majesty's Government
brought foward only such claims as were based upon the acts of the Venezuelan
Government itself, without in any way giving up the right to present those of
the other category if it should prove necessary. This course was followed until
revolutionary awards had been made in favor of French and German claimants.
1
This principle was followed in the cases of A. A. Pearse, F. G. Fitt, heirs of
Christian Philip, W. N. Meston, W. A. Guy, Fortunato Amar, L. L. Michenaux,
and Abdool Currim, which are not reported in this volume. For discussion of
principle here laid down see the German - Venezuelan Commission (Kummerow
Case), the Italian - Venezuelan Commission (Sambiaggio Case, Guastini Case)
and the Spanish - Venezuelan Commission (Padron Case, Mena Case), in Volume
X of these Reports.
AROA MINES
CONTENTION OF BRITISH AGENT
403
Since therefore, it was no longer possible to act upon the principle originally
favored, it was decided to present to (he Commission claims for damages due
to the acts of the insurgent forces. These claims are supported upon the ground
that the recovery of damages so caused is recognized by the protocol of
February 13.
In order to show what the terms of the protocol were meant to include, it is
necessary to refer to the circumstances under which the protocol was signed
and to what had occurred previously.
His Majesty's Government having for a long time presented to the Venezuelan Government claims due not only to the acts of their own troops, but
also to the acts of insurgents, without being able to obtain any redress, were at
length compelled, in common with the German Government, to declare a
blockade of Venezuelan ports. This blockade was not raised until after the
signing, and upon the terms of the protocol of February 13.
This protocol was settled after negotiations between His Majesty's representative and Mr. Bowen as representing ihe Venezuelan Government. In order
correctly to interpret the terms of the protocol regard should be paid to the
stage of the negotiations at which the exact words ultimately used lirst appear,
and to the connection in which they are there used.
The first step taken by the Venezuelan Government toward the raising of
the blockade was a communication from Mr. Bowen through the Government
of the United States to His Majesty's Government, asking that they and the
German Government would refer " the settlement of claims for alleged damage
to the subjects of the two nations during the civil war to arbitration."
To this a reply was sent by the two Governments, which is here quoted,
December 23, 1902:
His Majesty's Government have in consultation with the German Government
taken into their careful consideration the- proposal communicated by the United
States Government at the instance of that of Venezuela.
The proposal is as follows :
That the present difficulty respecting the manner of settling claims for injuries to
British and German subjects during the insurrection be submitted to arbitration.
The scope and intention of this proposal would obviously require further explanation. Its effect would apparently be to refer to arbitration only such claims as had
reference to injuries resulting from the recent insurrection. This formula would
evidently include a part only of the claims put forward by the two Governments,
and we are left in doubt as to the manner in which the remaining claims are to be
dealt with.
Apart, however, from this some of the claims are of a kind which no government
would agree to submit to arbitration. The claims for injuries to the persons and
properties of British subjects owing to the confiscation of British vessels, the plundering of their contents and the maltreatment of their crews, as well as some claims
for the ill usage and false imprisonment of British subjects, are of this description.
The amount of these claims is apparently insignificant, but the principle at stake is
of the first importance, and His Majesty's Government could not admit that there
was any doubt as to the liability of the Venezuelan Government in respect of them.
His Majesty's Government desire, moreover, to draw attention to the circumstances under which arbitration is now proposed to them.
The Venezuelan Government have, daring the last six months, had ample opportunities for submitting such a proposal. On the 29th of July and again on the 1 lth
of November it was intimated to them in the clearest language that unless His
Majesty's Government received satisfactory assurances from them, and unless some
steps were taken to compensate the parties injured by their conduct, it would become necessary for His Majesty's Government to enforce their just demands. No
attention was paid to these solemn warnings, and, in consequence of the manner
in which they were disregarded, His Majesty's Government found themselves
27
404
BRITISH-VENEZUELAN COMMISSION
reluctantly compelled to have recourse to the measures of coercion which are now
in progress.
His Majesty's Government have, moreover, agreed already that in the event of
the Venezuelan Government making a declaration that they will recognize the
principle of the justice of the British claims, and that they will at once pay compensation in the shipping cases and in the cases where British subjects have been falsely
imprisoned or maltreated, His Majesty's Government will be ready, so far as the
remaining claims are concerned, to accept the decision of a mixed commission which
will determine the amount to be paid and the security to be given for payment.
A corresponding intimation has been made by the German Government.
This mode of procedure seemed to both Governments to provide a reasonable and
adequate mode of disposing of their claims. They have, however, no objection to
substitute for the special Commission a reference to arbitration with certain essential
reservations. These reservations, so far as the British claims are concerned, are as
follows :
1. The claims (small, as has already been pointed out, in pecuniary amount) arising out of the seizure and plundering of British vessels and outrages on their crews
and the maltreatment and false imprisonment of British subjects, are not to be
referred to arbitration.
2. In cases where the claim is for injury to or wrongful seizure of property, the
question which the arbitrators will have to decide will only be (a) whether the
injury took place and whether the seizure was wrongful, and (b) if so, what amount
of compensation is due. That in such cases a liability exists must be admitted in
principle.
3. In the case of claims other than the above, we are ready to accept arbitration
without any reserve. * * *
It will be seen from this that in the first place all claims are to be submitted
to arbitration; that as regards claims " arising from the recent insurrection"
where such claims are for injury to or wrongful seizure of property the allied
Governments will only accept arbitration on the express terms " that in such
cases a liability exists must be admitted in principle." Finally, in the case of
other claims arbitration without any reserve is accepted.
It is clear that a meaning beyond the ordinary submission to arbitration must
be given to this very pointed and special admission of liability. It admits as
not open to discussion some principle which might be open to argument if
nothing more than a bare submission to arbitration were found.
As it occurs in this document the meaning is plainly that —
As regards all claims arising out of the recent insurrection, whether due to their
own acts or to those of insurgents, the Venezuelan 1Government must admit their
liability. Otherwise the blockade will not be raised.
These particular terms were never afterwards discussed. In the protocol the
Venezuelan Government admit their liability in these very words, and therefore
with the same meaning.
There is nothing unreasonable in this. This treaty was made under pressure
of a blockade. Under such circumstances what is more natural than to find
that the blockading power has insisted upon its own standard of right?
To say that in face of the words " the Venezuelan Government admit their
liability " the Venezuelan Government are only to be held liable under accepted
and recognized principles of international law is to say that these words carefully and deliberately inserted in an important section of a treaty are without
meaning or bearing on the effect of the treaty.
If it be suggested that " admit their liability " means that the Venezuelan
Government agree not to raise as a defense that these specially mentioned
1
See Appendix to original report, p. 1033. Not reproduced in this series.
AROA MINES
CONTENTION OF BRITISH AGENT
4 05
claims are a matter for the law courls, it may be pointed out that if a claim
which would otherwise be the subject of ordinary litigation be submitted to
arbitration, that fact alone means that all other jurisdictions are, as regards
that claim, set aside and superseded by the jurisdiction of the arbitral tribunal.
Therefore, the further provision that the Venezuelan Government admit their
liability would be superfluous and meaningless in the class of claims here submitted to arbitration.
This admission, then, is an acknowledgment on the part of the Venezuelan
Government that they take upon themselves liability for all claims of the kind
specified arising out of the insurrection, whether done by themselves or by
insurgents.
Since injury to or seizure of property is necessarily wrongful in the case of
insurgent forces, it is only needful to prove that they took place and arose out
of the insurrection, and liability at once attaches to the Venezuelan Government, the only remaining question being one of amount.
It has already been indicated that this liability for the acts of insurgents in
the case of a country so circumstanced is a doubtful point of international law.
depending as it does upon the question whether the country is " well-ordered
to an average extent " (Hall, p. 226). a point difficult and embarrassing to
discuss. The admission of liability found here is therefore just such as would be
expected under the circumstances.
It is not necessary to pursue the matter further, since, for the present purpose,
it is sufficient to rely on the liability admitted in the protocol, without reference
to the principles of international law. Attention is called to the point merely to
show that His Majesty's Government have not acted in an arbitrary or unreasonable manner.
Upon another ground also this tribunal ought to interpret the words " admit
their liability" in the sense above stated.
The treaty between Great Britain and Venezuela contains the following
provision :
In whatever relates to the safety of * * * merchandise, goods, or effects,
• * * as also the administration of justice, the subjects and citizens of the two
contracting parties shall enjoy * * * the same liberties, privileges, and rights
as the most favored nation.
All awards given by the Mixed Commissions are to be paid out of one fund.
It would therefore, in view of the above treaty, be a denial of equity if the
subjects of any other nation were to be paid sums of money out of this fund
upon a more favorable principle than British subjects.
German and French subjects have now obtained awards for damage caused
by revolutionaries, which will be so paid.
When, therefore, words have to be interpreted which admit of any possible
doubt as to their meaning— though it is contended that no such doubt exists
here — regard must be paid first to the treaty, and secondly to the provision
of the protocol, that decisions are to be based upon absolute equity. In such
a case it is the duty of this tribunal to give to the words the most favorable
possible interpretation as regards British subjects if by so doing the treaty rights
of British subjects will be the better maintained. Therefore, in view of the
treaty, the admission of liability must be read in the sense of a stipulation that,
in awarding payments out of the common fund, British subjects shall be paid
on as favorable a principle as the subjects of any other nation.
That is, since subjects of other nations receive payments on the ground of the
liability of the Venezuelan Government for acts of insurgents, " admit their
liability " must be read as conceding to British subjects the right to be paid
406
BRITISH-VENEZUELAN COMMISSION
on the same principle, i.e.. lor damages caused by the acts of revolutionaries.
GRISANTI, Commissioner:
His Britannic Majesty's learned agent in his last argument confines himself
almost exclusively to examining the circumstances and discussions which
preceded the signing of the protocol of February 13, 1903, maintaining that the
Government of Venezuela is liable for damages caused by revolutionists to
British subjects.
The most suitable manner of interpreting a treaty between nations and a
contract between private parties is to analyze carefully and minutely, without
prejudice, the clauses of the treaty, which are the plain, true, authentic, and
solemn meaning intended to be conveyed by the contracting parties, and of the
reciprocal duties assumed by them by virtue of their mutual agreement. The
examination of the preliminary work only entails the examination of the contentions and arguments which each of the contracting parties made and attempted to maintain, contentions and arguments which must necessarily be at
variance and even contradictory, as thus only could the controversy exist.
With regard to the preparatory work of legislation, Laurent says:
En apparence, les travaux préparatoires sont le commentaire authentique de la loi,
puisque c'est le législateur lui-même qui nous apprend ce qu'il veut; en réalité,
ces travaux nous font seulement assister à l'élaboration de la loi, ils ne sont pas
l'œuvre du législateur, mais de ceux qui ont contribué à faire la loi. Le texte seul
a une autorité légale. Tout ce qui a été dit pendant que la loi s'élaborait n'est pas
la loi, et on ne peut s'en prévaloir pour ajouter au texte, ou pour le modifier en quoi
que ce soit, car ce ne sont que des opinions individuelles de ceux qui ont concouru à
faire la loi. (Cours Elémentaire de Droit Civil, Vol. I, p. 22.)
This same criterion must be applied to the study of preliminary conferences
leading to the negotiation of a treaty, and consequently to those preceding the
protocol, confining its application, naturally, to the contracting parties. Because, although it is true that the blockade and cannons of the allied powers
greatly strengthened their demands, it is not true that they could enforce their
absolute will. Such will had to be held in check, but unfortunately it was not
curbed as much as justice demanded.
Now, confining myself to the argument of His Britannic Majesty's agent in
regard to the protocol itself, I am sorry to have to say that the meaning he gives
to Article III is at variance with the proper interpretations of conventions.
Said article provides that " The Government of Venezuela admit their
liability in cases where the claim is for injury to, or wrongful seizure of, property,"
etc., which clause can only be understood in its legal sense — that is to say, that
the Republic answers for injuries caused by the National Government and by
such persons as represented it. For Venezuela to assume responsibility for
damages caused by revolutionists contrary to the principles of unquestioned
justice in the general opinion of statesmen, and in the practice of nations, it
would be necessary that it should be so stipulated in the protocol expressly and
in the clearest manner; and it is not so stipulated. Justice and equity do not
admit of amplifying the clause of the protocol to include and sanction an obligation which is contrary to principle. In case the clause was not plain (which it
is) it could not be interpreted in a sense which would burden the party bound
(that is, Venezuela) as violating accepted juridic principles. These keep powerful
parties within the bounds of law, whereby they support the weaker and maintain the peace of the world.
His Britannic Majesty's agent affirms that Great Britain considered it
preferable to strike a medium between these two extremes:
AROA MINES
OPINION OF VENEZUELAN COMMISSIONER
407
1. That foreign claimants should not receive compensation for damages caused
by revolutionists.
2. But that if any foreign claimants received such compensation British subjects
should receive the same treatment.
And that, although she considered the first preferable, she adopted a general
form which would embrace the second if necessary.
This argument, which is of itself inadmissible, has already been refuted.
From the moment two nations enter into a treaty they must agree in the sense
and meaning of the same; and it is not right for one of the parties to reserve to
itself in perfore the privilege of enlarging its scope in performance for reasons
independent of the intention of both. It must be observed that this Mixed
Commission has been acting since June 1, and it was not until September that
His Britannic Majesty's agent decided to present the first claim for revolutionary
damages; such determination was made in view of two awards made by the umpires of the Venezuelan-French and the Venezuelan-German mixed commissions. It is therefore evident that these awards caused the British Government
to set aside their primary conviction, which was wholly in accordance with
justice and equity.
His Britannic Majesty's agent asserts that by virtue of Article I X of the
treaty of 1835 between Venezuela and Great Britain the subjects of the high
contracting parties shall, in the territory of the other nation, enjcy the same
privileges, prerogatives, and rights as those of the most-favored nation. This
is true, but said clause can only apply to the matters purposely designated in the
article which contains this stipulation, v.g., in everything relating to loading
and unloading of vessels; security of merchandise, goods, and articles; the
acquisition of goods of all kinds and denominations by sale, donation, exchange,
testament, or any other way whatsoever; as also to the administration of justice.
The latter point being the only one which, though in a most remote way, might
have any connection with the claim in discussion, means only that British
subjects in Venezuela, just as Venezuelan citizens in England, have the same
warranties, securities, and recourses as other aliens for the protection and
maintenance of their respective rights before the courts of justice established by
the local laws of each nation. Said clause is not applicable to these mixed
commissions, which are of a very extraordinary nature; and if it were, other
countries which have agreed with Venezuela upon the provision of the mostfavored nation would already have protested against some of the clauses of the
Venezuelan-British protocol. On the other hand, as these mixed commissions
proceed separately and absolutely independently of one another, and as the
persons who constitute them must use their own individual judgment in order
to render their decisions according to their own belief and conscience, the
decisions of other commissions can not be set up to serve as a guide for those
which this Commission will have to make.
The argument contained in the following paragraph is no more forcible:
All awards given by the mixed commissions are to be paid out of one fund. It
would, therefore, in view of the above treaty, be a denial of equity if the subjects of
any other nation were to be paid sums of money out of this fund upon a more favorable principle than British subjects.
Equity would be violated in injuring Venezuela, who is held liable to pay
claims which are entirely unfounded.
In the preliminary discussion which arose in the case of Consul de Lemos,
I demonstrated that publicists, such as Calvo. Fiore, Bonfils, and Seijas, in
addition to the statesmen — Lord Stanley. Count Nesselrode, Lord Granville,
and Lord Palmerston — are unanimously of opinion that nations are not
408
BRITISH-VENEZUELAN COMMISSION
liable for injuries sustained by foreigners in times of war. considering such
irresponsibility absolute when said injuries are caused by revolutionists or by
Government functionaries when compelled by the fatality of circumstances,
confining the obligation of repairing only willfully committed injuries by the
same. I consider it unnecessary to reinsert those quotations, which, moreover,
would make this statement extremely long. I might likewise cite the opinions
of other publicists and statesmen, but I do not consider it necessary, as the
point is not capable of being disputed on the policy and practice of nations.
Governments are not obliged to compensate for injuries committed by insurgents. His Britannic Majesty's agent having so understood, has sought to fix
the liability from the terms of the protocol.
By virtue of the reasons stated I ask that the supplemental claim of the
Aroa Mines (Limited) be declared inequitable and unlawful.
Great Britain has always professed the principle that governments are not
liable for damages caused by rebels ; Venezuela has likewise upheld the same
doctrine at all times, as is shown by the executive decree of February 14. 1873.
(Official Compilation of Laws. vol. 5. p. 243, No. 1820. art. 6.)
It is impossible for these two nations to have revoked said principle in the
protocol without having expressly and definitely so stated.
Umpire:
At the beginning of the umpire's opinion upon the important questions
involved in this case, he desires to express his sense of obligation to the learned
agents and the honorable Commissioners of both Governments for their very
able and painstaking presentation of their views upon the points raised, and for
their valued assistance in the matter of authorities and documents.
This case raises the question whether the Government of Venezuela shall be
held responsible to indemnify the claimants for injuries and losses received at
the hands of revolutionists during the last civil war.
Before entering upon an analysis of the case itself there are several matters
which may well be considered.
It is insisted upon by the claimant Government and resisted by the respondent
Government that the paragraph in Article III of the February protocol, in
which occurs a certain admission of liability on the part of Venezuela, is, when
properly interpreted and applied, an absolute and unavoidable admission of
liability for all claims arising out of the recent insurrection, whether due to
their own acts or to those of insurgents.
In the claim of de Lemos, upon the preliminary objection of the learned
British agent, raising the question that upon the terms of the protocol of
February 13. 1903, " the Venezuelan agent is nol entitled to set up any matter of
principle as an answer to this claim " because of the said admission of liability
in said Article III of the protocol, and that there remained only an inquiry as
to the facts, the umpire held in his interlocutory opinion therein (p. 421) —
PLUMLEY,
that the word " injury " was chosen because of its legal adaptation and significance,
and not in its colloquial sense.
That (p. 421) —
the word " injury " was taken by the signatory parties to import a legal wrong, and
in accordance with its fixed and determinate use in law as involving and importing
ipso facto an intentional wrongdoing on the part of those responsible therefor.
By giving to this word its meaning in law and applying it to a document of peculiar legal importance drawn and carefully considered by minds of profound scholarship and erudition in law, skilled in words accurate and apt, in sentences short,
clear, and trenchant, it is certain we can do no violence to the thought. By adopt-
AROA MINES
OPINION OF UMPIRE
409
ing any other interpretation of the language used, it becomes ambiguous, indiscriminative, and inapt. * * *
The umpire regards the section quoted from Article III of the same import and
value as though it had been written:
" The Venezuelan Government admit their liability in cases where the claim is
for a legal injury to property, and consequently the question which the Mixed
Commission will have to decide will only be:
" (a) Whether the legal injury took place. * * *
" (b) If so, what amount of compensation is due."
The question in each case being whether by the law governing the facts in the
case there has been such an injury. (See p. 422.)
In the case then before the umpire he held (p. 422) that there was open for
discussion and decision (a) whether the acts complained of were wrongful or
rightful governmental acts, (b) whether the injuries received were a necessary
sequence of the existing conditions, or I'C) resulted from some wrongful act or
neglect of the Venezuelan Government.
In the claim of James Crossman, 1 which was for the seizure and appropriation by Government troops of certain personal property of the complainant,
the learned agent for Venezuela in his answer contended that upon the admitted
facts the property was not taken by virtue of the orders of an officer, or because
of neglect by the military authorities, but was in fact a necessary calamity of
civil war, and that the claimant must be remitted to his action at law against
those who were responsible therefor.
To this answer the learned British agent raised a preliminary objection,
insisting that by the terms of Article III of the protocol of February 13, the
Venezuelan Government had denied to themselves the right to raise the
questions of law named in their answer and that in virtue of those admissions
" the only questions open to the Commission are: (1) Did the seizure take
place? (2) Was the seizure wrongful or not? (3) If wrongful, how much is
due? "
In the interlocutory opinion of the umpire in said case, he held 2 that the
word " seizure " as used in said protocol did not include property " taken by
robbery, tlieft, pillage, plunder, sacking or trespass. " That it was " limited to a
seizing under and by virtue of authority, civil or military. " That " there is
required in every case a wrongdoer as well as that wrong has been done or
suffered. A wrong intent or willful purpose must accompany the act. " " Not
only must the act be willful or with wrong intent, but it must be perpetrated by
some one having a right whereby to declare and express a governmental will and intent. "
The umpire now underscores these words to call especial attention to their
force and inclusiveness concerning the question in hand.
In neither of these cases was the opinion of the umpire given in expectation
that he would later meet before this Commission the question of responsibility
by Venezuela for the acts of unsuccessful revolutionists, since the historic attitude of Great Britain concerning the principle in issue would negative such a
proposition, save upon exceptional conditions carefully defined by international
law, in the development of which law that Government had borne a very
important and honorable part.
Held in their entirety and to their full rigor, the umpire would be compelled
by the force of these two opinions to declare stare decisis upon the question of
admitted responsibility for the acts of unsuccessful revolutionists, in which case
such question would stand before this Commission upon the respective merits of
1
Supra, p. 356.
- Supra, p . 3^8.
410
BRITISH-VENEZUELAN COMMISSION
each claim having only an admitted liability if well founded in law and fact, in
justice and equity.
Both of these opinions were given on mature deliberation after careful and
painstaking study of the protocols in all of their parts and of such authorities
upon the questions under consideration as were at his hand. He did not in the
opinions there given cite these authorities or quote therefrom. As briefly as
may be, he will now place them upon the record, that he may have them before
him to aid in the present determination, and that his honored associates, the
learned agents and their respective Governments, may know the authorities he
accepted and upon which he relied in coming to his aforementioned decisions.
The intention of the parlies is the pole star of construction; but their intention
must be found expressed in the contract and be consistent with rules of law. The court
will not make a new contract for the parties nor will words be forced from their real
signification. (Bouvier, Law Diet., vol. 1, p. 429.)
One leading principle of construction is to carry out the intention of the authors
of or parties to the instrument or agreement so far as it can be done without infringing upon any law of superior binding force.
In regard to cases where this intention is clearly expressed, there is little room for
variety of construction ; and it is mainly in cases where the intention is indistinctly
disclosed, though fairly presumed to exist in the minds of the parties, that any liberty
of construction exists.
Words, if of common use, are to be taken in their natural, plain, obvious, and ordinary significations; but if technical words are used, they are to be taken in a technical sense, unless a contrary intention clearly appear in either cs.se from the context.
(Bouvier, Law Did., vol. 1, p. 416, citing 9 Wheat., 188; 32 Miss., 678; 49 N. Y.,
281; 54 Cal., 111.)
Technical. Of or pertaining to the useful or mechanic arts, or to any science, business, or the like; specially appropriate to any art, science, or business; as the words of
an indictment must be technical. Blackstone. (Webster.)
Technicality. That which is technical or peculiar to any trade, profession, sect,
or the like. (Ib.)
In construing written laws, it is the intent of the lawgiver which is to be enforced;
this intent is found in the law itself. The first resort is to the natural significance
of the words employed, in their order of grammatical arrangement. (Bouvier, Law
Diet., vol. 1, p. 1106, citing Gooley Const. Lim., 70; 130 U. S., 670.)
Statutes should receive a sensible construction, such as will effectuate the legislative intention, and, if possible, so as to avoid an unjust or absurd conclusion.
(Bouvier, Law Diet., vol. 1, p. 1106, citing 144 U. S., 47.)
Where a law is expressed in plain and unambiguous terms, whether those terms
are general or limited, the legislature should be intended to mean what they have
plainly expressed, and consequently no room is left Jor construction. (Bouvier, Law
Did., vol. 1, p. 1106, citing 130 U. S., 671; 99 id., 72; 2 Cranch, 399.)
Courts will not assume to make a contract for the parties which they did not
choose to make themselves. (Morgan County v. Allen, 103 U. S., 498.)
When language is susceptible of two meanings, one of which would work a forfeiture which the other would not, the latter must prevail. (Bouvier, Law Did.,
vol. 1, p. 1 106, citing 71 Wis., 177.)
When a court of law is construing an instrument, whether a public law or a
private contract, it is legitimate, if two constructions are fairly possible, to adopt
that one which equity would favor. (Bouvier, Law Diet., vol. 1, p. 416, citing 160
U. S., 77.)
Neither will it be allowed to contravene established rules of law. (Bouvier, Law
Did., vol. 1, p. 124.)
All statutes are to be construed with reference to the provisions of the common
law, and provisions in derogation of the common law are held strictly. (Bouvier,
Law Diet., vol. 1. p. 416, citing 2 Black, 358; 117 Ind., 447; 4 Mich., 322; 5 W.
Va., 1.)
Where words have two senses of which only one is agreeable to the law, that one
must prevail. (Bouvier, Law Did., vol. 1, p. 1106, citing Cowp., 714.)
AROA MINES
OPINION OF UMPIRE
41 1
Construction is against claims or contracts which are in themselves against
common right or common law. (Bouvier, Law Did., vol. 1, p. 429.)
Where the language of an instrument requires construction, it shall be taken most
strongly against the party making the instrument. (Orient Mut. Ins. Co. v. Wright,
1 Wall., 456, U. S. Sup. Ct.)
A party who takes an agreement prepared by another, and upon its faith incurs
obligations or parts with his property, should have it construed most favorably to
him. (Noonan v. Bradley, 9 Wall., 394, U. S. Sup. Ct.)
What one party to a contract understands or believes is not to govern its construction unless such understanding or belief was induced by the conduct or declaration
of the other party. (National Bank of Metropolis v. Kennedy, 17 Wall., 19, U. S.
Sup. Ct.)
Agreements are construed most strongly against the party proposing. (Bouvier,
Law Diet., vol. 1, p. 124, citing 6 M. & W-, 662; 2 Pars. Contr., 20; 3 B. & S., 929;
7 R. I , 26.)
The more the text partakes of a solemn compact the stricter should be its construction. (Bouvier, Law Diet., vol. 1, p. 1107.)
Every agreement should be so complete as to give either party his action upon it;
both parties must assent to all its terms. i Bouvier, Law Diet., vol. 1, p. 428, citing 3
Term, 653; 1 B. & Aid., 681; 1 Pick., 278.)
The parties must agree or assent. They must assent to the same thing in the same
sense. (Bouvier, Law Diet., vol. 1, p. 123, citing 4 Wheat., 225, U. S. Sup. Ct.)
There is no contract unless the parties assent thereto. (Bouvier, Law Diet., vol. 1,
p. 429.)
The whole contract is to be considered with relation to the meaning of any of its
parts. (Bouvier, Law Diet., vol. 1, p. 429.)
All parts will be construed, if possible, so as to have effect. (Bouvier, Law Diet.,
vol. 1, p. 429.)
Words are to be taken, if possible, in their ordinary and common use. (Bouvier,
Law Diet., vol. 1, p. 429.)
The subject-matter of the contract and the situation of the parties are to be fully
considered with regard to the sense in which language is used. (Bouvier, Law Diet.,
vol. 1, p. 429.)
The law of the interpretation of treaties is substantially the same as in the case of
other contracts. (Bouvier, Law Diet., vol. 2, p. 1137, citing Woolsey's Int. Law,
185; 22 Ct. of Claims U. S., 1.)
That the contracting party, who might and ought to have expressed himself
clearly and fully, must take the consequences of the carelessness. (Phillimore, Int.
Law, ed. 1854, vol. 2, p. 93.)
If two meanings are admissible, that is to be preferred which is least for the advantage of the party for whose benefit a clause is inserted, for in securing a benefit he
ought to express himself clearly. (Woolsey, Intro. Int. Law, sec. 113.)
'" To follow the ordinary and usual acceptation, the plain and obvious meaning of
the language employed,"' which Phillimore says is the principal rule of interpretation. (Vol. I, sec. LXX.)
In all human affairs when absolute certainty is not at hand to point out the way
we must take probability for our guide. In most cases it is extremely probable that
the parties have expressed themselves conformably to the established usage, and
such probability affords a strong presumption, which can not be overruled but by a
still stronger presumption to the contrary. (Moore, 3621, quoting Vattel.)
When the language of a treaty, taken in the ordinary meaning of the words,
yields a plain and reasonable sense, it must be taken as intended to be read in that
sense, subject to the qualifications that any words which may have a customary
meaning in treaties differing from their common signification must be understood to have
that meaning, and that a sense can not be adopted which leads to an absurdity or to
incompatibility of the contract with an accepted fundamental principle of law. (Hall,
Int. Law., 350.)
International law names the source through which the claims of a British subject
against Venezuela must come. (Wharton, Dig. Lit. Law, sec. 215.)
The law of nations is the law of England. (IV Black. Com., 67; Phillimore, Int.
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BRITISH-VENEZUELAN COMMISSION
Law, vol. 1, ed. 1854, 62 (in brackets), citing Triquet and others v. Bath; Peach and
others v. same; Burrows Rep., 1480, quoting Lord Talbot as there saying: " The
law of nations in its full extent was part of the law of England." (Woolsey, Intro, to
Int. Law, sec. 29.)
The Supreme Court of the United States refuse to construe an act of Congress to
be in violation of " the law of nations if any other possible construction remains."
(Betsy,
2 Cranch, 118, U. S. Sup. Ct., Marshall, C.J.)
An act of Parliament will be so construed, if possible, as not to conflict with the
rule of international law covering the same subject-matter. Lord Stowell and
Doctor Lushington insist that in a prize court an act of Parliament can not control,
and if the act of Parliament plainly does conflict it is nugatory. (Holland's Studies
in Int. Law, 199.)
The law of nations should be respected by the Federal courts as a part of the law
of the land. (The Nereide, 9 Cranch, 388, U. S. Sup. Ct.)
The laws of the United States ought not, if it be avoidable, so to be construed as
to infract the common principles and usages of nations or the general doctrines of
international law. (Wharton, Int. Law Dig., vol. 1, sec. 8, p. 30, citing Talbott v.
Seaman, 1 Cranch, 1.)
The law of nations is the great source from which we derive those rules respecting
belligerent and neutral rights which are recognized by all civilized and commercial
states throughout Europe and America. (Wharton, Int. Law Dig., vol. 1, sec. 8,
p. 30.)
In what has been stated I have referred exclusively to the international obligations imposed on the United States by the general principles of international law,
which are the only standards measuring our duty to the Government of Honduras.
(Mr. Bayard, Sec. of State, to Mr. Hall, 6 Feb. 1886.)
The law of nations is the science of the law subsisting between nations or states
and of the obligations that flow from it. (U. S. v. The Active, 24 Fed. Cases, 755,
quoting Vattel.1
A claim " is, in a just juridical sense, a demand of some matter, as of right, made
by one person upon another, to do or to forbear to do some act or thing as a matter
of duty." (Prigg v. Penna., 16 Pet., 539, U. S. Sup. Ct.)
In my judgment a claim upon the United States is something in the nature of a
demand for damages arising out of some alleged act or omission of the Government
not yet provided for or acknowledged. As the term imports, it is something asked
for or demanded on the one hand and not admitted or allowed on the other.
(Moore's Int. Arb., 3623, citing Dowell i: Cordwell, 4 Saw., U. S. Cir. Ct., 228,
and quoting from Deady, J. )
On a claim against a foreign government for spoliation the demand is founded
upon the law of nations and the obligation of the offending government is perfect.
(Emerson v. Hall, 13 Pet., 409, U. S. Sup. Ct.)
Claim: 1. A demand of a right or supposed right; a calling on another for something due or supposed to be due. " Doth he lay claim to thine inheritance? " —
Shak. 2. A right to claim or demand; a title to any debt, privilege, or other thing
in possession of another. " A bar to all claims upon land." — Hallam. 3. The
thing claimed or demanded; that to which any one has a right, as a settler's claim
(U. S. and Australia). (Webster.)
Claim: I. A demand of anything as due. 2. A title to any privilege or possession in the hands of another. (Johnson.)
In the Spanish language the word of corresponding meaning is reclamacion.
" The opposition or contradiction which is made to anything as unjust." This is
reclamatio, oppositio.
(Salvâ.)
" The demand made for anything by him who has the right of property in it against
him who possesses or denies it." This is reclamatio. (Salvâ.)
Reclamacion (claim) : The opposition or contradiction that is made in words or
in writing against anything as unjust, or by showing that it contradicts itself; and the
claim or demand for anything by him who has the right of property in it against him
who possesses it. (Escriche, Diet, of Legis.)
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OPINION OF UMPIRE
413
Claimant: 1. One who claims; one who demands anything as of right; a claimer.
2. A person who has a right ; to claim or demand. (Webster.)
Claimant: He that demands anything as unjustly detained by another. (Johnson.)
In discussing the scope of the word " claim " in the treaty of 1819 between the
United States and Spain, Mr. John Q_. Adams, Secretary of State, in his letter to
Messrs. White and others, of March 9, 1822, observed that the treaty under the general term " claims " provided for the settlement of claims on contracts as well as
claims on torts. (Am. St. Papers, For. Rel. VI, 796.)
The term " claims " in the convention must be construed so as to confine it to
demands which must have been made the subject of international controversy, or
which are of such a nature as, according to received international principles, would
entitle them on presentation to the official support of the Government of the complainant. (Moore, Int. Arb., 3615, quoting Sir Frederick Bruce, umpire, U. S. and
New Granada.)
We are led to the general rule of law, which has always prevailed and become consecrated almost as a maxim in the interpretation of statutes, that where the enacting
clause is general in its language and objects, and a proviso is afterwards introduced,
that proviso is construed strictly and takes no case out of the enacting clause which
does not fall fairly within its terms. (Supreme Court of the United States in U. S.
v. Dickson, 15 Peters, 165.)
The rule seems to be: — that qualifying words are. while the general terms of submission are not, to be taken in a restrictive sense, if there is to be any distinction.
(Moore, Int. Arb., 3626, citing Vorhees v. Bank, 10 Peters, 449; Wayman v. Southard, 10 Wheat., 30; Bond v. U. S., 19 Wall., 227.)
Fundamentally, however, there is no difference in principle between wrongs
inflicted by breach of a monetary agreement and other wrongs for which the state, as
itself the wrongdoer, is immediately responsible. (Hall, 4th éd., p. 294.)
The mixed commission under the convention with that Republic (Mexico) has
always been considered by this Government essentially a judicial tribunal with independent attributes and powers in regard to its peculiar functions. (Daniel Webster,
Sec. of State, concerning Mexican - U. S. convention of April 11 , 1830.) (Moore,
Int. Arb., 1242.)
INJURY
Injury (Lat. in, negative, jus, a right.)
A wrong or tort.
Injuries arise in three ways: First, by nonfeasance, or the not doing what was a
legal obligation or duty, or contract to perform; second, misfeasance, or the performance in an improper manner of an act which it was either the party's duty or
his contract to perform; third, malfeasance, or the unjust performance of some act
which the party had no right, or which he had contracted not, to do.
When the injuries affect a private right and a private individual, although often
also affecting the public, there are three descriptions of remedies : * * * second, remedies for compensation, which may be by arbitration, suit, action.
* * * (Bouvier, Law Diet, Vol. I, 1044.)
There is a material distinction between damages and injury. Injury is the wiongful act or tort which causes loss or harm to another. Damages are allowed as an
indemnity to the person who suffers loss or harm from the injury. The word injury
denotes the illegal act, the term damages means the sum recoverable as amends for
the wrong. (Bouvier, Law Diet-, vol. 1, p. 1045, citing 103 Ind.. 319.)
Injury n.; pi. injuries. * * * L. injuria, fr. injurious, wrongful, unjust: prêt.
in — not -f- jus, right, law, justice; cf. F. injure. See JuU, a.
Injury in morals and jurisprudence is the intentional doing of wrong. (Webster's
Int. Diet.)
Damages in law is the estimated reparation in money for detriment or injury
sustained; a compensating recompense or satisfaction to one party for a wrong or
injury actually done to him by another. (Webster's Int. Diet.)
Damages. The indemnity recoverable by a person who has sustained an injury,
either in his person, property, or relative rights through the act or default of another.
(Bouvier, Law Diet., vol. 1. p. 491.)
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BRITISH-VENEZUELAN COMMISSION
" There is no right to damages where there is no wrong. It is not necessary that
there should be a tort, strictly so called — a willful wrong, an act involving moral
guilt. The wrong may be either a willful, malicious injury, as in the case of assault
and battery, libel, and the like, or one committed through mere motives of interest,
as in many cases of conversion of goods, trespasses on lands, etc. ; or it may consist in
a mere neglect to discharge a duty," etc.; " or a simple breach of contract," etc.;
" or it may be a wrong of another person for whose act or default a legal liability
exists," etc. " But there must be something which the law recognizes as a wrong,
some breach of a legal duty, some violation of a legal right, some default or neglect, some
failure in responsibility sustained by the party claiming damages. For the sufferer
by accident or by the innocent or rightful acts of another can not claim indemnity for his
misfortune." It is called darnnum absque injuria — a loss without a wrong for which
the law gives no remedy. (Bouvier, Law Dut., vol. 1, p. 492, citing many cases and
law writers.)
The umpire is not of opinion that he would be justified in making an award
against the Mexican Government.
The damages and losses alleged by the claimants seem rather to be the result of
the inevitable accidents of a state of war than to have arisen from a wanton destruction of property by Mexican authorities. (Moore Int. Arb., 3868, Shattuck's case,
Thornton, umpire, Mex. Com., 1868.)
The umpire is further of opinion that the damage done to cotton crops by cavalry
passing over them in the neighborhood of the scene of hostilities must be attributed
to the hazards of war, and for which the government of the belligerent can not be
held responsible. (Moore Int. Arb-, 3670, Cole's case, Thornton, umpire, Mex.
Com., 1868.)
The umpire is of opinion that when during time of war and in the enemy's country straggling soldiers and marauders go about robbing and destroying property it
can not be considered that it is an injury done by the authorities of the country
whose troops are invading an enemy's country * * * . The umpire therefore
awards that the above mentioned claim be dismissed. (Moore Int. Arb., 3670,
Buentello's case, Thornton, umpire, Mex. Com., 1868.)
Damages done to property in consequence of battles being fought upon it between
the belligerents is to be ascribed to the hazards of war and can not be made the
foundation of a claim against the government of the country in which the engagement took place. (Moore Int. Arb., 3668, Riggs's case, Thornton, umpire, Mex.
Com., 1868.)
The umpire is therefore of opinion that the claimant was committing no illegal
act in transporting his cotton through Coahuila and Tamaulipas with destination to
Matamoras on the 20th of September, 1864, and that as it was seized by Mexican
authorities the Mexican Government is bound to indemnify the claimant. (Moore
Int. Arb., 1327, Weil case, Mex. Com., 1868.)
The umpire can not doubt that robbery of cattle on the borders of Texas adjacent
to Mexico and their transportation across the Rio Grande has been earned on for
several years past; but he thinks that the proofs are entirely insufficient and he is
not at all satisfied that the robbers were always Mexican citizens and soldiers; that
bands of robbers were organized on the Mexican side of the river under the eyes and
countenance of the Mexican authorities, or that the sufferers by these plunderers
were refused redress by those authorities when they were appealed to in particular instances with regard to specific cattle proved by the owners to have been
stolen. * * * The umpire can not see that in the above-mentioned case there
are sufficient grounds for holding the Mexican Government responsible for the losses
suffered by the claimant, and he therefore awards that the claim be dismissed.
(Moore Int. Arb., 3037, Dicken's case, Thornton, umpire, Mex. Com., 1868.)
* * * At this period Halstead entered Mexico without a passport, committing
not " a criminal violation of the laws of Mexico " — passports are a matter of
police — but an offense for which he was arrested according to the laws of Mexico.
He was legally arrested and kept legally in prison for a couple of weeks, but he was
held a prisoner for something like four months, plainly not according to right and
justice. (Moore Int. Arb., 3244, Halstead's case, Lieber, umpire, Mex. Com.,
1868.)
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OPINION OF UMPIRE
415
See also Mexican Claims Commission, convention of 1868, the following cases:
Moore Int. Arb., 3669, Blumenkron; 3674, Wilson; 3672, Antrey; 3671, Schlinger;
3012, Donoughho; 3021, Wilson; 3027, Lagueruene; 3032, Bowley; 3033, Molière;
3721, Cole; 3722, Mark; 3726, Brach; 3673, Johnson; 3668, Baker.
Seize. (Law.) To take possession of by virtue of a warrant or other legal
authority; as, the sheriff seized the debtor's goods. (Webster's Int. Did.)
Seizure. The act of seizing, or the stale of being seized; sudden and violent grasp
or gripe; a taking into possession, as the seizure of a thief, a property, a throne, etc.
Retention within one's grasp or power: hold; possession; ownership. (Webster's
Int. Did.)
Seizure. In practice, the act of taking possession of the property of a person
condemned by the judgment of a competent tribunal to pay a certain sum of money,
by a sheriff, constable, or other officer lawfully authorized thereto, by virtue of an
execution, for the purpose of having such property sold according to law to satisfy
the judgment. (54 N. W. Rep. (Wis.), 30.) The taking possession of goods for a violation of public law; as, the taking possession of a ship for attempting an illicit trade.
(2 Cra., 187; 4 Wheat., 100; 1 Gall., 75; 2 Wash. C. C , 127, 567; 6 Cowp., 404;
Bouvier, Law Did., vol. 2, p. 976.)
The Constitution of the United States, amendment, article 4, declares that " the
right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures, shall not be violated; and no warrants shall
issue but upon probable cause, supported by oath or affirmation, and particularly
describing the place to be searched and the person or thing to be seized." (Bouvier,
Law Did-, vol. 2, p. 969, citing 11 Johns, 500; 3 Cra., 447; Story, Const., 1900; 116
U. S., 616.)
In the conventional agreement between the United States of America and Peru,
March 17, 1841, these words are used: " Seizures, captures,detention, sequestrations,
and confiscations of their vessels." And the limits placed are to " claims on account
of the seizure, damage," etc. (Moore Int. Arb., 4590-4607.)
JUSTICE
Justice. The quality of being just; conformity to the principles of righteousness
and rectitude in all things; strict performance of moral obligations ; practical conformity to human or divine law; integrity in the dealings of men with each other; rectitude;
equity; uprightness.
The rendering to everyone of his due or right; just treatment; requital of desert;
merited reward or punishment; that which is due to one's conduct or motives.
Examples of justice must be made for terror to some. Bacon. (Webster's Int.
Diet.)
Justice refers more especially to the cairymg out of law, and has been considered
by moralists of three kinds: (1) Commutative justice, which gives every man his own
property, including things pledged by promise; (2) distributive justice, which gives
every man his exact desert; (3) general juslice, which carries out all the ends of law,
though not in every case through the precise channels of commutative or distributive
justice. (Webster's Int. Did.)
The constant and perpetual disposition to render every man his due. The conformity of our actions and our will to the law
There is properly but one single general rule of right, namely: Give every one his
own.
The foregoing are the authorities upon which the umpire rested his opinions
in the two aforementioned cases, and the force and effect of which opinions were
that the expressions in question were to be given their usual, ordinary, and
obvious meaning when employed in claims treaties under accepted and recognized principles of international law, and that the effect and purpose of admitted
liability on the part of Venezuela was not to extend the meaning and appli-
416
BRITISH-VENEZUELAN COMMISSION
cation of '" injuries " and " wrongful seizures " beyond their well-established
bounds.
The learned agent of Great Britain in the case before us contends that this
holding practically emasculates the admission of liability and deprives it of
all meaning and bearing in connection with the treaty, and that it can not be
presumed that this expression, carefully selected and deliberatedly inserted in
an important section of such treaty, was to be treated as without meaning and
effect. The learned agent urges that the treaty under consideration was made
while a blockade of the Venezuelan ports was in progress and that his Government made the acceptance of liability, in the sense and in the words finally
used in the perfected treaty, a condition precedent to the lifting of the blockade;
and that this fact is, in his judgment, conclusive in favor of his proposition that
Venezuela thereby admitted her liability for all claims arising out of the recent
insurrection, whether due to their own acts or to those of the insurgents.
Since there is no mention of civil wars or war of any kind in that part of the
protocol, the umpire understands the learned agent's contention to rest upon
the position that all injuries to property and all wrongfull seizures thereof are
included in Venezuela's admitted liability. That it is, in his present contention,
applied to all claims arising out of the insurrection is simply because such cliims
are the only claims under consideration in this particular case.
The umpire is of opinion that the expression of admitted liability was not
used carelessly or without purpose, but was intended to have grave and important effect upon the Commission assembled under the provisions of said treaty.
The question is simply this: Is it the effect claimed by the learned agent or
some other?
As held by the umpire, there was no ambiguity in the language used, and,
as considered by the umpire, there was nothing ineffective in any of the provisions of the treaty. There seemed to him, on the face of its provisions, nothing
to interpret, nothing to construe.
But the learned agent contends that, when viewed historically with a wiseregard for all the conditions antecedent, proximate, and immediate, construction becomes necessary, and that when properly construed his contention will
prevail; that there is, in fact, a latent ambiguity which first arises in the application of the treaty to the facts in hand.
It is held in Bouvier (vol. I, p. 1107, citing 1 Dall., 426; 3 S. and R., 609), that
" when there is a latent ambiguity which arises only in the application and does
not appear upon the face of the instrument it may be supplied by other proof."
That " the journals of a legislature may be referred to if the meaning of a
statute is doubtful or badly expressed." (Bouvier, vol. I, p. 417) That in
contracts in case of doubt " there must always be reference to the surrounding
circumstances and the object the parties intended to accomplish." (Bouvier,
vol. I, p. 1107.)
The umpire has therefore carefully reviewed the historical status and the
circumstances surrounding the parties at the time the treaty was made.
By the courtesy of the two Governments he is in possession of the Blue Book
containing correspondence respecting the affairs of Venezuela, and the Yellow
Book of Venezuela, together covering all the time which it is important to
include in this inquiry, and it is from these two sources that the umpire has
obtained his knowledge of the circumstances preceding and leading up to the
blockade and the adjustment of matters between the war powers and Venezuela,
finally crystallizing in the respective protocols.
(1) The scene opens with a dispatch from the governor of Trinidad to the
British colonial office, of date March 16, 1901, concerning an outrage on British
subjects by the Venezuelan gunboat Augusta, the event having relation also to
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OPINION OF UMPIRE
417
Patos Island. Representations concerning the same were inade by the British
minister resident at Caracas to the Venezuelan minister of foreign affairs prior
to March 22, 1901, (No. 3); and, later, a report from the minister of the contemplated steps of the Venezuelan Government in reference thereto.
(2) Outrage on J. N. Kelly, of Trinidad, by Venezuelan soldiers, reported to
the Marquis of Lansdowne by the British minister resident at Caracas by
communication of date March 22, 1901, which outrage occurred during the then
recent insurrection in the eastern part of Venezuela. On March 12 the British
minister had communicated in writing (No. 6) to the Venezuelan minister of
foreign affairs a description of this outrage, the last paragraph of which contains
in part the following:
I will not dwell on the prejudicial effect on the interests of Venezuela herself
caused by occurrences of this nature, as I feel sure that your excellency will agree
with me in thinking that the injury done — not by insurgents, but by soldiers of the
Government — to an inoffensive and law-abiding immigrant — * * *
In connection with the Augusto incident, there were claims and counterclaims as to the respective rights of the British Government and of Venezuela
in the island of Patos, both asserting sovereignty therein. (See No. 8 and inclosures 1 and 2 in No. 8.)
(3) Communication from the British minister resident at Caracas to the
Marquis of Lansdowne, of date April 17, 1901, relating to the alleged burning
and plundering of the sloop Maria Teresa, the property of a British subject, by a
Venezuelan gunboat off Guiria during the then late disturbances on the Gulf of
Paria and the maltreatment of British subjects in connection therewith, inclosure 9 in No. 11 being a copy of the communication addressed by the British
minister at Carcaras to the Venezuelan secretary of foreign affairs. It appears
from this communication that the sloop was first taken by the insurrectionary
troops at Yrapa and ordered to proceed to Yaguarapaso with revolutionary
soldiers, who were landed there. It is also claimed that this service to the
revolutionary forces was compulsory, that the master received no compensation
therefor, and that the sloop was engaged in lawful traffic. But there was no
demand upon the Government of Venezuela because of the compulsory service
under revolutionary orders, and these facts were referred to in an exculpatory
and explanatory way.
(4) Communication No. 12, from the British minister resident at Caracas
to the Marquis of Lansdowne, of date April 17, 1901, referring to the case of
John Craig and his vessel, the sea Horse, a British subject of Trinidad, for indignities and losses received at the hnnds of an unnamed Venezuelan guardacosta
carrying a crew of eight men, whose commander it is alleged landed on the
island of Patos, assaulted the subjects of Great Britain, and seized their property
while they were peacefully engaged in their lawful avocations. Inclosure 8
in No. 12 is a copy of the communication made by the British minister to the
Venezuelan secretary for foreign aifairs calling his official attention to the facts
and the importance of the Craig case.
In the reply of the Venezuelan secretary for foreign affairs of the same date
(p. 27) he reviews the claim of Venezuela to the island of Patos as a part of her
territory.
In the statement of Raphael José Ortega (p. 33), referring to the case of the
Maria Teresa, it is alleged that this sloop was engaged in clandestine trade and in
carrying implements of war to the revolutionists, and also that her captain was
in league with them.
In the inclosure No. 20 (p. 35) there is a copy of the communication of the
minister for foreign affairs to the Bitish minister resident at Caracas, having
418
BRITISH-VENEZUELAN COMMISSION
reference to the case of John Craig, in which there is brought forward the charge
of complicity in revolutionary matters as a justification for the Venezuelan acts.
(5) Inclosure 1 in No. 24 is a communication from the governor of Trinidad
to Mr. Chamberlain, of date October 3, 1901, calling attention to the seizure of
the sloop Pastor by the Venezuelan gunboat Tutono off the island of Patos. And
as is shown in the communication from the British foreign office to the colonial
office, No. 37, of date November 30. 1901, the incidents connected with the
seizure, when taken with other like acts in reference to this islands, make them
a repeated violation of territory and as indicating a purpose on the part of
Venezuela to consider and treat Patos as belonging to it, and therefore calling
for a " strong remonstrance against any infraction of the sovereign rights of Great
Britain." This was done by the British minister resident at Caracas by his
communication to the Venezuelan minister for foreign affairs December 17, 1901,
(inclosure 1 in No. 46), and on December 20, 1901, the Venezuelan minister for
foreign affairs (inclosure 2 in No. 46, to the British minister resident at Caracas)
replies to this communication, asserting that the matters there referred to —
must be considered in connection with the notorious circumstance that Venezuela
considers the island in question as its legitimate possession.
(a) No. 25 is a communication from the customs to the British foreign office,
of date November 8. 1901, concerning the fitting out of the Ban Righ, a matter
which later assumed great importance in the minds of the Venezuelan Government, and was a cause of much feeling on their part against the British Government. This boat was nominally for the Colombian Government, and was fitted
out as a vessel for offense and defense, and was loaded with a considerable
quantity of arms and ammunition. At Antwerp it is alleged to have taken on
a large quantity of arms and ammunition of French manufacture, and was
expected to take on a consignment of shell at Pipe de Tabac, about 20 miles
below Antwerp. (See Nos. 37 and 17 of date November 30, 1901.) Later the
vessel was taken to Martinique and there turned over to General Matos. (No.
55.) On February 28, 1902, the Venezuelan Government took the position
toward the British Government that until the latter would recede from its
position of indifference and irresponsibility for the Ban Righ the Venezuelan
Government could not consider " on bases of mutual cordiality the other matters
which reciprocally concern " their respective Governments. On June 9. 1902
(No. 87), the Marquis of Lansdowne wrote the British minister that His Majesty's
Government could not admit that there is any connection between the question
of the Bolivar Railway and that of the Ban Righ, and could not acquiesce in the
attempt of the Venezuelan Government to postpone dealing with other pending
questions until that of the Ban Righ was disposed of.
(b) Communication of date November 18, 1901, from General Pachano to
the British minister resident at Caracas (inclosure 1 in No. 40), calling attention to the landing of a great quantity of rifles and of cartridges on the island
of Tobago and asking for the mediation of the minister in obtaining from the
colonial authorities measures to prevent these arms leaving Tobago to the
harm of Venezuela.
The governor of Trinidad declined to interfere. (Inclosure 2 in No. 42.)
(6) No. 49, British colonial office to the British foreign office, of date January 25,
1902, calls attention to " the seizure and detention by the Venezuelan authorities of a colonial British-owned and British-registered sloop, the Indiana, in the
waters of the Barima River, in Venezuelan territory."
(7) The governor of Trinidad to Mr. Chamberlain, of date April 17, 1902,
calls attention to the conduct of Senor Figuredo, Venezuelan consul at Port of
AROA MINES
OPINION OF UMPIRE
419
Spain, in connection with the dispatch of vessels from that port to Venezuela.
This matter became one of serious importance and disturbance between the
two Governments, and resulted in much correspondence between them, but
no understanding.
(8) In the communication of the governor of Trinidad to Mr. Chamberlain
of date May 12, 1902 (inclosure 1 in No. 88), attention is called to the destruction at Pedernales by the Venezuelan gunboat General Crespo of the British vessel
In Time.
(9) Communication of the British minister resident at Caracas to the Marquis
of Lansdowne, of date June 30, 1902 (No. 106), calling attention " to the seizure
by a Venezuelan man-of-war on the high seas of the British vessel Queen," and
stating that the attention of the Venezuelan Government had been called to
the matter, with a request for information as to the steps proposed by them.
(10) Memorandum on existing causes of complaint against Venezuela
by the British foreign office, of date July 20. 1902, No. 108, in which there
appear case of seizures by the Venezuelan gunboat Augusta, case of the Sea
Horse, case of the Maria Teresa, case of the Pastor, case of the Indiana, case of the
In Time, case of the Queen. Under each case is a condensed statement of the
facts accompanying each alleged outrage, the action of the British Government
in connection therewith, and the position of the Venezuelan Government in
reference thereto.
There follows, also, in said memorandum of causes for complaint a statement
of the action of the Venezuelan consul at Trinidad, in which his offenses are
summed up, and the fact also appears that the Venezuelan Government had
been notified thereof and that notice had been taken of their communication.
In the same memorandum there occurs this:
Besides these specific outrages and grounds of complaint there are cases in which
British subjects and companies have large claims against the Venezuelan Government. The Venezuelan Government decline to accept the explanations and assurances of His Majesty's Government with regard to the Ban Righ as in any way
modifying the situation. As a result, the position of His Majesty's legation at
Caracas has been rendered for diplomalic purposes quite impracticable, as alJ
representations, protests, and remonstrances now remain disregarded and unacknowledged.
Returning to an earlier date in the correspondence between the British
Government and the Venezuelan Government, under date of December 31,
1901 (No. 41), in the communication from the British minister resident at
Caracas and the Marquis of Lansdowne, and referring to the fact that Venezuela
had proclaimed the vessel Ban Righ a pirate, there is found this statement:
I have warned the Venezuelan Government unofficially that any infraction of
international law with regard to the life and property of British subjects should be
avoided. It is contended by the minister for foreign affairs that international law is
overruled by the Venezuelan law of piracy.
In the index to the Blue Book there is this summary:
Ban Righ. — The Venezuelan Government offer reward for capture.
declare municipal law overrules international law.
They
The instructions of the Marquis of Lansdowne to the British minister resident
at Caracas, of date July 29. 1902 (No. 110), directing him to make final protest
and demand for reparation with a sharp alternative, cover the points named in
the foregoing memorandum and no other.
In the statement of the British foreign office to the Admiralty, of date August 8,
1902 (No. 115), there appears this: '
28
420
BRITISH-VENEZUELAN COMMISSION
For the past two years His Majesty's Government have had grave cause to complain on various occasions of unjustifiable interference on the part of the Venezuelan
Government with the life and property of British subjects. The successive instances
which have occurred since the beginning of last year are set forth in the accompanying memorandum. * * *
Lord Lansdowne is of opinion that the time has arrived when stronger measures
must be resorted to for the purpose of bringing the Venezuelan Government to a
sense of their international obligations.
*
*
*
I am to add that, in conversation with Lord Lansdowne, Count Metternich, the
German ambassador, has suggested that the powers concerned should take part in a
joint naval demonstration.
In an extract from the dispatch of Minister Haggard to the Marquis of
Lansdowne. of date August 1, 1902, he incloses a copy of the note which he
addressed to the Venezuelan Government embodying the instructions conveyed to him by his lordship's telegram of 29th ultimo (No. 110), which note
Minister Haggard says he took personally to the acting minister for foreign
affairs and carefully translated it to him word for word. This note is of date
July 30, 1902 (p. 138), and begins by saying that he has been informed —
by His Majesty's Government that they have had under their serious consideration
a succession of cases in which the Venezuelan Government have interfered with the
property and liberty of British subjects in a wholly unwarrantable manner.
Then follows an enumeration of the incidents and complaints named in
No. 108. The communication closes with the following paragraph:
It is not possible, His Majesty's Government consider, to tolerate a continuance o
conduct which, in this last incident, reached a climax; and they have consequently
instructed me to record a formal protest with reference thereto and to convey to
His Excellency the President and to the minister for foreign affairs, in terms about
which there can be no mistake, that, unless explicit assurances are received by His
Majesty's Government that such incidents shall not occur again, and that full compensation be paid promptly to the injured parties wherever it be shown to the satisfaction of His Majesty's Government that such compensation be justly due, they will
take such steps as they may consider to be necessary to exact the reparation which
they have the right to demand in these cases, as well as on account of the claims of
the British railway companies in Venezuela as also for any loss caused by the conduct of the Venezuelan consul at Trinidad, for which there is no possible justification.
The reply of the Venezuelan Government (No. 123) was, in brief, that they
declined discussing these matters unless at the same time the matter of the Ban
Righ and their claims against Great Britain on account thereof were taken up
for consideration. 1
The memorandum of the British foreign office communicated to the German
ambassador October 22, 1902 (No. 127), opens with the statement that —
His Majesty's Government have, within the last two years, had grave cause to complain of unjustifiable interference on the part of the Venezuelan Government with the
liberty and property of British subjects.
Among other instances alluded to as supporting this statement is found this —
It may be mentioned that there are several British railway companies in Venezuela which have large claims against the Government in respect of services rendered, damage done to property by Government troops,
but no allusion to losses from revolutionists.
British Blue Book (Venezuela, No. 1, 1903), p. 139.
AROA MINES
OPINION OF UMPIRE
42 1
September I, 1902 (No. 129), the Marquis of Lansdowne is advised by the
British minister resident at Caracas of the imprisonment of a British subject,
A. Martin Gransaul, at Puerto Cabello by the Venezuelan authorities, and also,
on October 22 (No. 130), another dispatch concerning the cutting and maiming
of a British subject, John Jones, by the Caracas police.
November 11, 1902 (No. 134), the Marquis of Lansdowne telegraphed
Sir M. Herbert, British ambassador to the United States of America, directing
him to see Mr. Hay, Secretary of State for that country, and to make him a
communication in the following terms :
His Majesty's Government have, within the last two years, had grave cause to
complain of unjustifiable interference on the part of the Venezuelan Government with the
liberty and property of British subjects;
stating, also, that they had sought without result amicable settlement, and that
it was felt that a continuance of such conduct could not be tolerated; that they
had asked assurances as to the future and reparation for the past, but to no
result.
It was on November 13, 1902 (No. 137), that through Count Metternich
there was submitted to Great Britain a statement of Germany's claims, and in
the first class were placed her claims arising out of the Venezuelan civil war of
1898-1900, amounting to 1,700,000 bolivars approximately. England's firstclass claims were the illegal removal and destruction of her merchant ships. In
the event of coercive measures becoming necessary the two powers were to
make further claims, but there is no reference to acts of revolutionists.
In a communication (No. 140) from the Marquis of Lansdowne to Mr.
Buchanan, of date November 17, 1902, concerning a conference had with
representatives of the German Government, there is a further statement concerning an agreement with Germany, a recapitulation of the British claims, a
reference to coercion if necessary, and then a statement as to the subsequent
action of the British Government on receiving the submission of the Venezuelan
Government " and on learning that they were prepared to admit their liability
on every count." After providing for the immediate payment of the claims in
the first class, they —
would then consent to the heavier claims being referred to a small mixed commission
of three members in case the Venezuelan Government should have any considerations to urge in mitigation of the damages claimed. An arrangement of this nature
would be equitable as regards the Venezuelan Government, and would, moreover,
prevent pressure being exercised in cases, such as might possibly occur, where the
Venezuelan member of the commission could prove a claim to be unfounded or excessive.
Another note (No. 141) of same date, from the Marquis of Lansdowne to
Mr. Buchanan, speaks of the action of the foreign bondholders of Venezuela and
their request for the support of their governments; that this request did not
come until September; that in consequence their claim was not included in the
demand of July, and therefore suggesting that they act with the German Government in representations to Venezuela and in urging her to accept the
arrangement proposed.
November 26, 1902 (No. 153), in the communication from the Marquis of
Lansdowne to Mr. Buchanan there is a statement of the substance of the German
ambassador's communication to him which contained a rehearsal of the
claims of the Imperial Government, the first two of which are —
(a) payment of the German claims arising out of the civil wars of the years 18981900, amounting to about 1,700,000 bolivars; (b) settlement of claims arising out
of the present civil war in Venezuela. * * *
422
BRITISH-VENEZUELAN COMMISSION
The Imperial Government also concur in the further proposal of His Majesty's
Government to demand at once from the Venezuelan Government the acceptance
in principle of all the German and English claims, and to reserve the separate settlement of claims for a mixed commission to be appointed later;
but declining to submit those under paragraph (a) to such commission, suggesting also that both Governments present simultaneously an ultimatum —
in which each power should embody its own collective demands, referring at the same time
to the demands of the other power.
The communication of the Marquis of Lansdowne to Mr. Buchanan (No.
154) of even date with the last, but referring to a conversation with the German
ambassador of date even with the communication, states the points in which
the two Governments had not fully agreed.
On December 2, 1902 (No. 161), the Marquis of Lansdowne communicated
to the British minister resident at Caracas the contents of the ultimatum to be
presented by him to the Venezuelan Government. Among others there are
these: He should state that His Majesty's Government —
can not accept the note as in any degree a sufficient answer to your communications,
or as indicating an intention on the part of the Venezuelan Government to meet the
claims which His Majesty's Government have put forward, and which must be
understood to include all well-founded claims which have arisen in consequence of the
late civil war and previous civil wars and of the maltreatment or false imprisonment
of British subjects, and also a settlement of the external debt.
You will request the Venezuelan Government to make a declaration that they
recognize in principle the justice of these claims. [And that] * * * as to the
other claims they will be prepared to accept the decisions of a mixed commission
with regard to the amount and the security for payment to be given.
It was on December 7, 1902, two days before the memorandum hereinafter
referred to was submitted to the German Reichstag, that the ultimatum of the
British Government and of the German Government were presented, in writing,
by their representatives at Caracas to the Venezuelan Government through its
secretary for foreign affairs. (See Inclosure 1 in No. 217.) The umpire quotes
from the ultimatum of the British Government as follows :
I have the honor to state further that His Majesty's Government also regret the
situation which has arisen, but that they can not accept your excellency's note as in
any degree a sufficient answer to my communications or as indicating an intention
on the part of the Venezuelan Government to meet the claims which His Majesty's
Government have put forward and which must be understood to include all well-founded
claims which have arisen in consequence of the late civil war and previous civil wars
and of the maltreatment or false imprisonment of British subjects, and also a settlement of the external debt.
I am to request the Venezuelan Government to make a declaration that they
recognize in principle the justice of these claims, that they will at once pay compensation
in the shipping cases and in the above-mentioned cases and in those where British
subjects have been falsely imprisoned or maltreated, and that in respect of other
claims they will be prepared to accept the decisions of a mixed commission with
regard to the amount and the security for payment to be given.
The umpire quotes from the ultimatum of the German Government (Yellow
Book, pp. 37-41), 1 as follows:
The Imperial Government has, in good time, taken knowledge of the note of the
ministry of foreign relations of the Republic of Venezuela of the 9th of May last.
By that note the Venezuelan Government rejected the demands of the Imperial
Government in respect to the payment of the German claims growing out of the
See Appendix to original report, p. 969. Not reproduced in this series.
AROA MINES
OPINION OF UMPIRE
423
civil wars from 1898 to 1900, and, in support of its negative attitude, referred to arguments previously advanced. The Imperial Government, even after considering
those arguments anew, does not think it can recognize them as probatory.
The Government of the Republic argues, in the first place, that by reason of the
domestic legislation of the country, the settlement by diplomatic action of the claims
of foreigners growing out of the wars is not admissible. It thus sets up the theory
that diplomatic intervention may be barred by domestic legislation. This theory is
not in conformity with international law, since the question of deciding whether
such intervention is admissible is to be determined not according to provisions of
domestic legislation, but in accordance with the principles of international law.
The Venezuelan Government, aiming to demonstrate that the diplomatic prosecution of claims is inadmissible, further cites article 20 of the treaty of amity, commerce, and navigation between the German Empire and the Republic of Colombia
of the 23rd of July, 1892. But this argument does not seem to have weight, first,
because the treaty is operative between the Empire and Colombia only and, besides,
because section 3 of the said article in nowise opposes the diplomatic prosecution of
German claims growing out of acts committed by the Colombian Government or its
agents.
*
*
*
In the first place, the claims originating at an earlier period than the 23rd of May,
1899 — that is, prior to the accession of the present President of the Republic —
are not, under the decree, to be taken into consideration, whereas Venezuela will be
materially held responsible for the acts of its preceding Governments. Next, any diplomatic intervention in the decisions of the Commission is barred, no other resource
than an appeal to the high federal court being admitted, notwithstanding the fact
that has been proved in various instances that the judicial officers are depending on
the Government and, when the occasion arose, have been dismissed from their
offices without any formality whatever. * * *
By order of the Imperial Government I have also to ask that the Venezuelan
Government will forthwith make a stalement in the sense that it recognizes, in
principle, those claims as valid and that it is disposed to accept the decision of a
mixed commission for the purpose of having them determined and guaranteed in
every particular.
To these ultimata there was an answer by the Venezuelan secretary for
foreign affairs, of date December 9, 1902 (inclosed in No. 217), and from the
one addressed to the British minister resident at Caracas the umpire quotes as
follows: 1
Your excellency then enters into the question of the British claims and asks, in
the name of your Government, that Venezuela should declare that they are just in
principle, and you finally allude to the necessity of paying them and to the common
action which the United Kingdom and the German Empire have agreed to exercise
in order to compel the Republic to do so. * * *
There is no reason why the Federal Government should not recognize the justice
of obligations which are provided for in the national laws, and on this point you
may be perfectly sure that the interests in question will be always protected and
duly attended to.
With reference to the claims, your excellency would seem to refer definitely to
those which you enumerated in a note of the 20th February, 1902, amounting, in
your opinion, to 36,401 bolivars. The examining commission created with the
agreement of the national legislative body will take them into consideration and
will settle them in accordance with justice. The remaining cases which are not
answered in the correspondence depend, as far as they can be considered as constituting claims, on facts which have to be proved or defined, and which the competent authorities will attend to or are attending to. And since your excellency
speaks of well-founded claims, it does not appear possible that such cases, in their
actual condition or legal position, can have the same character as those which are
explained in documents which testify to their character and which give an oppor1
See Appendix to original report, p. 985. Not reproduced in this series.
424
BRITISH-VENEZUELAN COMMISSION
tunity of enlightening the judgment or guiding the decision of the body who will
consider them. (As translated in Blue Book, p. 188.)
From the one addressed to the charge d'affaires of the German Empire
resident at Caracas (Yellow Book, p. 41) 1 the umpire quotes:
It takes up, as being the only argument of Venezuela against diplomatic intervention in matters of a certain nature, that which was concretely stated in the reply of
May 9, in which the whole doctrine set forth in the previous correspondence was
passed by, because a repetition of it was deemed unnecessary. And inasmuch as
the very highest principles of international law have precisely been taken for a
foundation of the defence of the position of Venezuela presented in the memorandum
of March 19, 1901, it was found with extreme surprise that you ascribed to the Government a purpose to consider the question in no other light than that of domestic
legislation. When article 20 of the treaty between the Empire and Colombia was
cited in the note of May 9, last, it was with no other intention than diat of adding
supplementary proof to that already adduced in regard to the assent given by
Germany to the doctrines upheld by Venezuela.
The three cases now cited as precedents for agreements reached through the diplomatic channel are self-explaining. In 1885 an arrangement was made with France
for the payment of allowed claims and the examination of cases dating from much
earlier periods; and proof of the fact that the doctrine maintained by Venezuela is
therein duly recognized is found in Article V of that convention, whose force has
just been fully confirmed. That article inhibits the diplomatic agents of the two
contracting parties from intervening in private claims or complaints relating to
matters appertaining to civil or criminal justice, unless there should be some denial
of justice. * * * If the claims under discussion are just claims, the Federal
Executive, as an honored and civilized power, hastens here and now to give the
assurance that those claims will be examined and passed upon as such; and inasmuch as the proper board is already organized, there is no occasion for dilatoriness
or the slightest departure from the rules laid down by the law in the conduct of the
proceedings. In regard to the other particulars, every one of which comes under
its regulating law, I need only call attention to the abnormal circumstances created
by the war, which are paralyzing any action on the obligations connected therewith.
The Government is considering the appointment of a fiscal agent, who, by entering
into direct communication with the interested parties, will help in making the
satisfaction of those obligations easier and less protracted. It is only hoped that the
work of pacification in which the Government is now deeply and earnestly engaged
will enable it to reestablish the service of public credit.
The claims growing out of the war, that is still desolating and devastating a part
of the Republic, will share fully in all the rights that are established by the law regulating the matter.
To prevent obscurity and to place before his honored associates and the
learned agents of their respective Governments the facts which are within the
knowledge of the umpire and which are referred to more or less directly in
these ultimata and in the replies thereto, he makes a quick detour to a time
antecedent to the correspondence hitherto quoted herein; and, beginning with
the matters affecting Germany as indissolubly related to the affairs of the
British Government in connection with the question before him, refers first to
the written statement of the Venezuelan secretary for foreign affairs, of date
August 12, 1902, and found in the " Yellow Book," pages 5-11,2 in which it
appears that the United States of America were officially advised that Germany
was contemplating " coercive or comminatory action against the Republic
of Venezuela " as early as December 11, 1901, and that their reasons therefor
were given at that time and were, as then understood by Venezuela —
1
See Appendix to original report, p. 971. Not reproduced in this series.
"- Idem, p. 955. Ditto.
AROA MINES
OPINION OF UMPIRE
425
based on the refusal of the Venezuelan Government to permit that powers, foreign to
the nationals, take part in the examination, classification, or mode of payment of the
claims that various German subjects have presented or reserve the right to present
for alleged losses or damages sustained during the last wars since 1898. While the
text of the memorandum makes unfavorable remarks about the Venezuelan magistrates of the judiciary, whose office it is to pass upon the nature of these claims, it sets
forth the resolution of the Imperial Government to present the claims itself, as
finally examined, in order that they may be accepted in that form by Venezuela
whether willing or not.
In consequence of the above-mentioned publication, the Government of the
Republic is now confronted by a document by which it is seriously affected and of
whose spirit and tendency it was entirely unaware. * * *
The paper of the German ambassador, once known to Venezuela, can not be
allowed to pass without the protest resulting from its contravening maxims of strict
equality that international law advocates as a principle of harmony among the
states of the civilized world. * * *
The views and arguments advanced by the Republic since the beginning in support of its refusal to accept diplomatic action in the settlement of claims of the Empire have never been refuted, not even incidentally. * * *
In that series of diplomatic notes the Empire rested its case not only on the law of
the country, which, as such, gave sufficient force to the argument, but on the best
recognized rules of modern international law, on the opinion of eminent European
and American writers, on the legislation of other countries, Germany herself,
among others, and on the ideas and circumstances which no fair government can
ignore when it has to examine claims with due regard to all those concerned. It
never was the intent of the Republic, in that correspondence, to impose its will
arbitrarily and capriciously, nor did it intend, as the ambassador seems to suppose,
to evade sacred obligations in a frivolous manner, but to hold the ground it has stood
on since its advent to political life, for natural and judicious reasons. * * *
The Imperial Government, according to the language of the ambassador, wishes
to examine and decide for itself and by itself the character, amount, and mode of
payment of claims connected with property or interests established in the Republic
of Venezuela. The Venezuelan Government, supported by its constitution and the
regulations, maintains that such procedure can not be granted to any but the respective national powers. * * *
If by exceptionally waiving the local laws, the matter of claims was allowed
to be made one of mere diplomatic action, the simultaneous effect might be a
constant injury to the internal sovereignty and a ceaseless threat to the national
treasury. * * *
If the class of claims relating to property owned within the territory does not come
exclusively under the law of the country, il would behoove the other party to prove
t by representing such a statement as would upset all maxims, arguments, and
opinions advanced by Venezuela.
This document distributed among the powers closes with a reference to " the
organization of the two International Congresses convened on the powerful
iniatiative of the Great Republic of the North," to which attention is here
called by the umpire that it may be remembered in connection with what he
has to say on the same matter further on in his opinion. Concerning the
remaining part of the Yellow Book having reference to the correspondence
with Germany beginning in April, 1900, and running on to the close of 1902,
the umpire for the sake of brevity calls attention without quoting to the fact
that it consists of claims upon the part of Germany covering the losses sustained
by the great railroad of Venezuela in connection with the civil war up to the
close of 1899; of general-indemnity claims growing out of the same war; of the
claim of Venezuela that the decree of January 24, 1900, provided for their
ascertainment and liquidation; of the refusal of Germany to allow the said
decree to influence in any way its attitude " in regard to claims of German
proteges," of its objection in detail to the provisions of such decree; of a reasser-
426
BRITISH-VENEZUELAN COMMISSION
tion on the part of Venezuela of the propriety of the decree, and of the judicial
validity of the law of February 14, 1873, regarding the manner of preferring
claims against the nation ; the arguments of Venezuela in favor of its positions
on these questions; of a reference to " the celebrated International American
Conference of 1889-90 and approval of the principles then enunciated by fifteen
delegates there present; " of lengthy quotations from international law writers
in supporting Venezuela's contention, and other matters considered relevant
and important to the provision of her constitution making equal civil rights for
natives and aliens; which positions are proclaimed and adhered to on the one
part and denied on the other through a correspondence covering many pages of
the Yellow Book. The right of intervention on the part of Germany in behalf
of her subjects is distinctly repudiated by Venezuela as being in "judicial
impossibility; " " that such intervention is contrary to the law of the country and
therefore inadmissible under the international law; " to which the German Government replies that it holds " that national laws which exclude diplomatic intervention are not in harmony with international law, because, according to the
view of the powers of the Republic, all intervention of this character could be
barred by means of municipal
legislation." (See pp. 28, 29, 30, 31 of Yellow
Book, May 9, 1902).1 This is a communication from the Venezuelan minister
of foreign affairs to the chargé d'affaires of the German Empire, closing the
correspondence between Germany and Venezuela until the presentation of
their ultimatum December 7, 1902, to which reference has already been had.
The British Government, through its minister resident at Caracas, in his
communication of April 25,2 1901, to the Venezuelan minister for foreign affairs,
informs that Government —
that the declaration communicated to the Government of Venezuela by Mr.
Middleton, His Majesty's resident minister, in his communication of May 21, 1873,
to the effect that His Majesty's Government reserves the right to object to any claim
on the part of Venezuela at any future time to having released itself, by its own decree, from responsibility to Great Britain as to the injustice or damages caused to
British subjects, for which Venezuela would be bound to give indemnization either
by reason of the law of nations in general or by virtue of the provisions of treaties.
To this there is a reply by the Venezuelan minister for foreign affairs, of date
May 11, 1901, in which he states in part as follows 3 :
On the other hand, the chief justice believes that no reservation of rights whatever
concerning decrees issued in the name of the national sovereignty, and the effects
of which include both natives and foreigners, is possible or acceptable. There is no
principle of the law of nations, nor any assumption whatever in the stipulation which
Venezuela should bear in mind concerning Great Britain, which binds the Government to establish discriminations in the protection of the interests which should be
governed by internal legislation.
To the positions here taken the British minister resident at Caracas takes
serious exception in his communication of May 13, 1901, asserting that it is in
contradiction of the terms of the treaty of 1825, a part of which he quotes, and
further on he says 4 :
This constitutes a marked difference which it would have been deemed impossible
to deny and which it is impossible to avoid. His Majesty's Government has never
admitted, therefore, the contention of the Venezuelan Government, which is of long
1
2
3
4
See Appendix
Idem, p. 975.
Idem, p. 975.
Idem. p. 976.
to original report, p. 970. Not reproduced in this series.
Ditto.
Ditto.
Ditto.
AROA MINES
OPINION OF UMPIRE
427
standing, that the claims of British subjects should be placed on the same footing as
those of natives, submitting them to judicial intervention and decision to the exclusion of diplomatic intervention.
On May 25, 1901, 1 the Venezuelan minister for foreign affairs answered the
communication last above referred 1o in a long letter reproducing the arguments of Venezuela in favor of her law of 1873, citing authorities in support
thereof, citing the statutes and constitutions of Mexico, Guatemala, Salvador,
Nicaragua, Honduras, Colombia, Brazil, Ecuador, Peru, the Argentine Republic, and Paraguay upon the same points; and asserts that the thirty years
during which the law of 1873 has been upon the statutes adds much to its dignity
and force among nations.
December 25, 1901, the British minister resident at Caracas communicates to
the Venezuelan minister for foreign affairs the regrets of His Majesty's Government 2 —
that the Government of Venezuela refuses to recognize the reservations of rights
made by His Majesty's Government in the question of British claims in the last and
previous communications, concerning the right to object to any claim on the part of
the Venezuelan Government at any time, of releasing itself, by its own decree, of
responsibility with Great Britain with respect to damages or injuries caused to British
subjects by which Venezuela would be bound to make indemnization, either in
accordance with international law in general or in conformity with treaty obligations. These reservations include also the refusal of His Majesty's Government to
recognize any limitation whatever by the national law of its right in accordance with
the general principles of international law.
December 16, 1902 (No. 193), there was a communication from the Marquis
of Lansdowne to Mr. Buchanan, referring to a conversation had with the
German ambassador concerning the Venezuelan proposal for arbitration, in
which he informed the German ambassador —
We were, however, inclined to admit that, whilst it was impossible for us to accept
arbitration in regard to our claims for compensation in cases where injury had been
done to the person and property of British subjects by the misconduct of the
Venezuelan Government, it was not necessary to exclude the idea of arbitration in
reference to claims of a different kind. We had already provided for the reference
to a mixed commission.
On December 17, 1902 (No. 194), Count Metternich communicated to the
British Government a memorandum which was communicated to the German
Reichstag by Count Biïlow on December 9, 1902 :
By the civil wars which have taken place in Venezuela during the years 1898 to
1900 and again since the end of last year, numerous German merchants and land
owners have suffered serious injury, partly through the exaction of forced loans,
partly by the appropriation without payment of supplies found in their possession,
especially cattle for feeding the troops, and, lastly, by the plundering of their houses
and the devastation of their lands. The total of these damages, as regards the civil
wars during the years 1898 to 1900, amounts to, roughly, 1,700,000 bolivars (francs),
while for the last civil war damages to the extent of, roughly, 3,000,000 bolivars have
already been reported. Some of the injured parties have lost almost the whole of
their property, and have thereby inflicted loss on their creditors living in Germany.
*
*
*
*
*
*
*
It may be added that the Germans in the latest civil war have been treated in a
particularly inimical manner. The acts of violence, for instance which were committed by the Government troops when they plundered Barquisimeto, were princiSee Appendix to original report, p. 976. Not reproduced in this series.
Idem, p. 979. Ditto.
428
BRITISH-VENEZUELAN COMMISSION
pally committed at the expense of German houses. This attitude of the Venezuelan
authorities would, if not punished, create the impression that Germans in Venezuela
were abandoned without protection to the arbitrary will of foreigners, and would be
calculated seriously to detract from the prestige of the Empire in Central and South
America, and be detrimental to the large German interests which have to be protected in those regions.
It is also here stated that the claim on behalf of the Great Venezuelan
Railway, a German enterprise, equals a b o u t £ 300,000.
Count Metternich, in forwarding this memorandum to the British Government " points out that the German claims are not only pecuniary, but also
based on the ill treatment of Germans by the Venezuelan authorities. "
This defines and limits the meaning of the claim arising from the civil wars
spoken of by the Germans in this connection and elsewhere, and is conclusive
in its exclusion of all acts of revolutionaries from the claim and demands
contained in its ultimatum submitted to the Venezuelan Government December 7, 1902.
It was on December 17 that the Marquis of Lansdowne informed Sir Michael
Herbert, at Washington, that —
the American chargé d'affaires told me to-day that he had received instructions to
inform me that the Venezuelan Government now earnestly wished for arbitration,
which, in the opinion of the United States Government, seemed to afford a most
desirable solution of the question! in dispute.
On December 18, 1902, the Marquis of Lansdowne informed Sir M. Herbert
at Washington that he had that afternoon informed the United States chargé
d'affaires that the cabinet had decided to accept in principle the idea of settling
the Venezuelan dispute by arbitration and that the German Government was in
accord.
It was on December 18. 1902 (No. 199), that the Marquis of Lansdowne
communicated to Sir F. Lascelles that the German ambassador had that day
informed him of his Government's agreement with Great Britain as to its
treatment of the Venezuelan proposal for arbitration, but that his Government
desired to make certain reservations similar to what had been previously
suggested, and these reservations were submitted in a written memorandum.
Paragraph 2 contains the following:
All further demands contained in the two ultimatums shall be submitted to the proposed court of arbitration. The latter will therefore have to consider not only the
claims in connection with the present Venezuelan civil war, but also, as far as Germany is concerned, the demands mentioned in the memorandum laid before the
Reichstag of German subjects arising from the nonfulfillment of liabilities incurred
by contract by the Venezuelan Government. The court of arbitration will have to
decide both on the material justification of the demands and on the ways and means
of their settlement and security.
There is added:
The Government of the United States of America would be conferring an obligation on us if, by exerting their influence over the Venezuelan Government, they
could succeed in persuading the latter to accept these proposals.
*
*
*
*
*
*
*
I told his excellency that I would communicate his statement to the cabinet,
which was to meet in the afternoon, and that I had little doubt that, in principle,
the two Governments would be found to entertain similar views.
I was able, later in the afternoon, to inform his excellency that the cabinet agreed
to arbitration as a means of settling the dispute, subject to the following reservations, which he undertook to communicate to the German Government:
AROA MINES
OPINION OF UMPIRE
429
1. The shipping claims are not to be referred to arbitration.
2. In cases where the claim is for injury to, or wrongful seizure of, property, the
questions which the arbitrators will have to decide will only be —
(a) Whether the injury took place and whether the seizure was wrongful; and
(b) If so, what amount of compensation is due. That in such cases a liability
exists must be admitted in principle.
On December 22, 1902, the Marquis of Lansdowne sent to Sir F. Lascelles a
copy (inclosure in No. 207), received from Count Metternich, of the reply
which the German Government returned to the proposals made by Venezuela
through the United States Government, from which reply certain extracts are
here made. There were reserved from arbitration claims —
which originated in the Venezuelan civil wars from 1898 to 1900, and of which
•details are given in the inclosed memorandum of the 8th December, which was communicated to the Reichstag. It will be seen that they consist of claims on account of acts of
violence on the part of the Venezuelan Government or their agents.
*
*
*
All other claims which have been put forward in the two ultimata could be submitted to the arbitrator.
The arbitrator will have to decide both about the intrinsic justification of each
separate claim, etc.
In the case of claims in connection with damage done to, or unjustifiable seizure
of property, the Venezuelan Government will have to recognize their liability in
principle, so that the question of liability will not form the subject of arbitration,
but the arbitrator will be concerned solely in the questions of the illegality of the
damage or seizure.
*
*
*
The Government of the United States of America would be conferring an obligation on the Imperial and British Governments if, by exerting their influence over
the Venezuelan Government, they could succeed in persuading the latter to accept
these proposals.
Memorandum communicated to Ambassador White December 23, 1902
(No. 209), stated among other matters that —
His Majesty's Government have in consultation with the German Government
taken into their careful consideration the proposal communicated by the United
States Government at the instance of that of Venezuela. * * *
His Majesty's Government have, moreover, already agreed that in the event of the
Venezuelan Government making a declaration that they will recognize, the principle
of the justice of the British claims, etc.
January I, 1903, Ambassador White inclosed to the Marquis of Lansdowne a
copy of a telegram, via Secretary Hay, from Minister Bowen, in which there is a
signed communication from President Castro, and in which appears —
I recognize, in principle, the claims which the allied powers have presented to Venezuela.
Neither the British nor the German Governments were satisfied with this
telegram of President Castro, and both insisted on an unreserved acceptance of
conditions 1, 2, and 3, which were communicated to Ambassador White
December 23,1902. and on January 5,1903 (No. 222), the Marquis of Lansdowne
communicated to Ambassador White what President Castro's recognition " in
principle" meant as understood by His Majesty's Government, and in that
connection made a restatement of those conditions and required of President
Castro a definite acceptance thereof, which was given of date January 9, 1903,
through Mr. Bowen (No. 226), in the language following:
The Venezuelan Government accepts the conditions of Great Britain and Germany.
And the conditions which were thus presented so far as they affect the question
now before the umpire, as he understands, were that Venezuela " will recognize
the principle oï the justice of the British claims."
430
BRITISH-VENEZUELAN COMMISSION
Mr. Bowen telegraphs from Caracas to Mr. Hay, January 6, 1903 (Bowen's
Pamphlet, p. 9), 1 among other things, that President Castro asserts —
that the claims against him are purely commercial in character; that he acknowledges that he must pay such of them as are just.
In the agreement which Mr. Bowen, representing Venezuela, signed
January 27, 1903 (Bowen's Pamphlet, p. 15),2 in regard to the 30 per cent of the
total income of the ports of La Guaira and Puerto Cabello, communicated by
telegram from Ambassador Herbert to the Marquis of Lansdowne, there appears
a statement very significant as to his understanding of the claims to which
Venezuela was obliged to respond, viz:
I hereby agree that Venezuela will pay 30 per cent of the total income of the ports
of La Guaira and Puerto Cabello to the nations that have claims against her, and it
is distinctly understood that the said 30 per cent will be given exclusively to meet the
claims mentioned in the recent ultimatums of the allied powers and the unsettled claims
of other nations that existed when said ultimatums were presented.
O n January 23, 1903 (Bowen's Pamphlet, p. 12),3 Sir Michael Herbert, at
Washington, communicated to Mr. Bowen the demands of the British Government, so far as they referred to the claims included in Article I I I of the protocol,
in the following language :
2. Other claims for compensation, including railway claims and those for injury
or wrongful seizure of property, must be met by an immediate payment to His Majesty's Government or by a guaranty adequate to secure them. These claims can be,
if desired, examined by a mixed commission.
These conditions were accepted by Mr. Bowen by a note of the same date.
January 24. 1903 (Bowen's Pamphlet, p. 14),4 the imperial chargé d'affaires
at Washington submitted a document to Mr. Bowen concerning the claims of
Germany against Venezuela, and in Article II thereof says:
All the other claims which have already been brought to the knowledge of the Venezuelan Government in the ultimatum delivered by the imperial minister resident at
Caracas, i. e., claims resulting from the present civil war, further claims resulting
from the construction of the slaughterhouse at Caracas, as well as the claims of the
German Great Venezuelan Railroad for the nonpayment of the guaranteed interest,
are to be submitted to a mixed commission should an immediate settlement not be
possible.
III. The said commission will have to decide both about the fact whether said
claims are materially founded and about the manner in which they will have to be
settled or which guaranty will have to be offered for their settlement. Inasmuch as
these claims result from damages inflicted on property or the illegal seizure of such
property, the Venezuelan Government has to acknowledge its liability in principle,
so that such liability in itself will not be an object of arbitration, and the decision of
the commission will only extend to the question whether the inflicting of damages or
the seizure of such property was illegal. The commission will also have to fix the
amount of indemnity.
February 5, 1903, the Marquis of Lansdowne cabled Sir Michael Herbert,
ambassador, in part as follows:
A separate telegram is being sent to you which contains the draft of a protocol
embodying the conditions which have already been accepted by Mr. Bowen.
1
2
3
4
See Appendix
Idem, p. 1039.
See Appendix
Idem, p. 1037.
to original report, p. 1035. Not reproduced in this series.
Ditto.
to original report, p. 1037. Not reproduced in this series.
Ditto.
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OPINION OF UMPIRE
431
Article III of the protocol thus submitted and Article I I I of the protocol of
February 13, are identical. The language is every word the language of the
claimant Government, and it was asserted by that Government (No. 263) to
contain nothing not accepted by Mr. Bowen prior to February 5, 1903. What
these agreements were has been set out here in substance.
From a careful reading of all the correspondence and conferences between the
two allied powers and Venezuela, beginning in April, 1900, and continuing up
to and including February 13, 1903, and which appear in the Yellow Book and
the Blue Book, and in all the correspondence or conferences appearing in those
two books and Mr. Bowen's pamphlet relating to the correspondence and
conferences between him as the representative of Venezuela and the three war
powers, Great Britain, Germany, and Italy, and in all the correspondence and
conferences appearing in either of these documents in which the United States
of America had a part, the umpire fails to find a sentence, a word, or a syllabe
suggestive of a claim by either of these three powers that Venezuela should
respond in damages or be held to indemnities because of the acts of insurgents.
O n the contrary, Germany had stated their claims to be based on " acts of
violence on the part of the Venezuelan Government or their agents," and the
statements of Great Britain were not opposed, but wholly consistent therewith.
The high contracting parties knew during the negotiation, and at the conclusion thereof when the protocols of February 13 were signed, that Germany
had declared in the most formal and explicit manner, on an occasion not remote
and in circumstances of the State not dissimilar, her view of equity and justice
concerning the liability of governments for the acts of revolutionaries. This
appears in her treaty with Colombia in 1892, where is laid down her view of
law, justice, and equity in these words :
It is also stipulated between the contracting parties that the German Government
will not attempt to hold the Colombian Government responsible, unless there be
due want of diligence on the part of the Colombian authorities or their agents, for
the injuries, vexations, or exactions occasioned in time of insurrection or civil war to
German subjects in the territory of Colombia, through rebels, or caused by savage
tribes beyond the control of the Government. (Art. 20, sec. 3.)
Italy, the other war power, up to the time of signing the protocol of February 7,
1903, by her treaty with Venezuela in 1861 was bound to treat such matters
reciprocally, as appears in the language following:
In cases of revolution or of interior war the citizens and subjects of the contracting
parties will, in the territory of the other, have the right of being indemnified for
damages and losses which may be caused to their persons or property by the constituted authorities of the country on the same terms as the nationals would have a
right to indemnification according to the laws which prevail in such country.
(Art. 4.)
And she had deliberately restated her position on such questions under
conditions not dissimilar to those of Venezuela in her treaty with Colombia in
1892, as follows:
It is also stipulated between the two contracting parties that the Italian Government will not hold the Colombian Government responsible, save in the case of
proven want of due diligence on the part of the Colombian authorities or of their
agents, for injuries occasioned in time of insurrection or civil war, to Italian citizens
in the territory of Colombia, through the acts of rebels, or caused by savage tribes
beyond the control of the Government. (Art. 21, sec. 3.)
Great Britain had a historical attitude of a similar character on this question,
which she had applied in the case of the United States of America in 1861-1865
(see Hall, p. 232). and again not many years since to a country no more well
432
BRITISH-VENEZUELAN COMMISSION
ordered than Venezuela, namely, to Colombia, in 1885, when a British subject
was injured by the burning of Colon, Colombia, and sought the aid of his Government for reparation from Colombia. Under instructions from the British
foreign office, the English minister resident stated that the destruction of Colon
was due solely to the revolutionists, and that when these events took place " the
Government of Colombia was entirely unable to prevent them, even though it
afterwards accidentally succeeded in putting down the rebellion." And from
these facts it was thought it could not be asserted that his injury " was directly
due to the fault of the Colombian Government to the extent of justifying a
demand for redress in behalf of those English subjects who, like yourself, have
unfortunately suffered losses by reason of the fire." And the conclusion of the
matter was that, under instructions of the prime minister, he was informed by
the English minister: " I am unable to support your claims against the Government of Colombia." (U.S.-Vene. Claims Commission, convention of 1892,
p. 585.)
The umpire desires to call attention specifically to the general attitude of the
South American and Central American republics relating to the right of the
state by constitutional provision and municipal legislation to cut off the right
of the government of the injured citizen to intervene to demand attention to
injuries received by their subjects in property and person, who maintain, some
of them, that in virtue of such legislation no diplomatic claim can exist, and if
one is submitted to an arbitral tribunal a judgment of dismissal must be
entered. He assumes, rightfully he believes, that all governments concerned in
the matter of which we are now inquiring were fully informed and thoroughly
advised concerning the legislation and the attitude to which the umpire refers.
That they knew that at the time these protocols were drawn opinions irreconcilable with theirs were held by a very large part of the South American and
Central American republics ; that these opinions were strengthening rather than
abating; that they had taken form in national constitutions and statutes, and in
proposed treaties and international agreements.
They knew that at the Pan-American Conference of 1889-90, in a majority
report of its committee on international law, among other things it was declared
" that foreigners are entitled to enjoy all the civil rights enjoyed by natives, and
to all substantive and remedial rights in the same manner as natives," and
" that a nation has not, nor recognizes in favor of foreigners, any other obligation or responsibilities than those which are established in like cases in favor of
the natives by the constitution and laws." That it was there recommended
that these resolutions be adopted as " principles of American international
law." They knew these principles there propounded were in sharp and rugged
conflict with the law of nations as understood and accepted by Europe and the
United States of America. They knew that at the Pan-American Conference
held in the City of Mexico in 1901 the delegates representing fifteen of the
twenty states which were there assembled reaffirmed the propositions of 1889
and declared again and emphatically that the states do not recognize in favor of
foreigners any obligations or responsibilities other than those established by
their constitutions and laws in favor of their own citizens, and that the states are
not responsible for damages sustained by aliens originating from acts of war,,
whether civil or national, " except in case of failure on the part of the constituted
authorities." From this deliverance both knew that if the constitution and laws
of the given state gave no remedies, or illusive ones, to natives for the wrongful
seizure of or injury to property, it would be claimed and urged that foreigners
must accept the consequences ; and that also where the property of aliens had
been seized and confiscated for military use by the military powers of the
government there was no compensation therefor, regardless of the constitution
AROA MINES
OPINION OF UMPIRE
433
or laws of the particular state, and in direct contravention to the generally
accepted law of nations applicable thereto.
They knew that there were several treaties projected at this conference all
more or less at war with international law as held by Europe ; that one country
urged a treaty declaring as one of its provisions that " in all cases where a foreigner has claims or complaints of a civil order, criminal or administrative,
against a state, no matter what the ground of his allegations may be, he must
address his complaint to the proper judicial authority of the state, without being
entitled to claim the diplomatic support of the government of the country to
which he belongs to enforce his pretensions, but only when justice shall have
failed, or when the principles of international law shall have been violated by
the court which took cognizance of the claim; " that " in every case where a
foreigner has claims or complaints of a civil, criminal, or administrative order
he shall file his claim with the ordinary courts of such state; " that no government should " officially support any of those claims which must be brought
before a court of the country against which the claim is made, except cases in
which the court has shown a denial of justice or extraordinary delay or evident
violation of the principles of international law." They knew that to establish
such a principle of action would prevent any government from intervention in
any case until there had been an exhaustion of all legal remedies and a palpable
denial of justice; and that concerning this it was provided that " a denial of
justice exists only in case the court rejects the claim on the ground of the nationality of the claimant." A second country would establish an " international
court of equity; " but provided that the claimant must first exhaust all legal
remedies before the courts of the defendant state where the nature of the claim
permitted it to be adjusted by such courts.
They knew that at this conference it was proposed by three of the States in
conference that a treaty should be made declaring that the responsibility of the
state to foreigners is not greater than that assured to natives ; that the government
should not entertain diplomatically any demand of a citizen in a foreign country
where the claim arises out of a contract entered into between the authorities and
the foreigner, or where it has been expressly stipulated in the contract that the
government of the foreigner shall not interfere; that the government of a foreigner shall not interfere to support his complaint or claim originating in any civil,
penal, or administrative affairs, except for denial or undue delay of justice, or
for nonexecution of a final judgment of the courts, or when it is shown that all
legal remedies have been exhausted, resulting in a violation of express treaty
right, or of the precepts of public or private international law " universally
recognized by civilized nations." They knew that the words in quote, if agreed to,
prevented any intervention, because of (he fact that one of the South American
states had by statute declared that no judgment rendered against a foreigner
could be held as unjust or a denial of justice, even though the decision was
iniquitous and against express law. They knew that the South American and
Central American republics, with few, if any, exceptions, were permeated
through and through with the seductive doctrines of Calvo, the distinguished
Argentine publicist, the fundamental idea of which is that no government may
rightfully intervene in aid of its citizens in another country, and that this fundamental doctrine to a greater or les extent had been brought into constitutions
and statutes of the different states. They knew that in the constitution of Venezuela, Title III, Section I, article 14, there was to be found this provision, namely:
Foreigners will enjoy all civil rights which are enjoyed by nationals, but the
nation does not hold or recognize in favor of foreigners any other obligations or
responsibilities than those which have been established in a similar case in the constitution and in the laws in favor of nationals.
434
BRITISH-VENEZUELAN COMMISSION
And that in paragraph 2, article 14, there is to be found this:
In no case may either nationals or foreigners pretend that either nation or states
shall indemnify them for damages, prejudices, or expropriations which have not
been executed by legitimate authority operating in its public character.
They knew of the Venezuelan law of March 6, 1854, concerning indemnity
to foreigners, and the decree of Guzman Blanco of date February 14, 1873, and
that it was protested against by many, if not all, of the leading nations of Europe
and by the United States of America; that notwithstanding these protests it was
republished by order of President Castro January 24, 1901, and that, as republished, it required " all who bring claims against the nation, whether nationals
or foreigners, by reason of damages and injuries and seizures by acts of national
employees or of the states, whether in civil or international war, or in time of
peace, will bring them " before the high federal court under the rules of procedure laid down in articles 3, 4, 5, and 6 of the decree; that article 8 of the decree
provided " that whoever appears in a manifest manner to have exaggerated the
amount of the injuries he may have suffered will lose his right to recover and be
subject to fine or imprisonment, and if it be altogether false will be mulcted in a
fine or sent to prison; " that article 9 of the decree provided " that in no case
shall the nation or the state indemnify for losses, damages, or injuries, or seizures
which have not been executed by legitimate authorities working in their public
character; " that article 10 set a limitation of two years on all actions permissible
under the law; that article 11 declared " that all who without public character
decree contributions or forced loans or spoliations of any nature, as well as those
who execute them, will be directly and personally responsible with their goods
for whomever may be prejudiced; " that article 13 repealed the law of March 8,
1854, relating to indemnities above referred to. They knew that President
Castro issued an order January 24, 1901, creating a junta to examine and determine the damages claimed by nationals and foreigners against the nation on
account of the war initiated May 23, 1899, and limiting the time within which
claimants must appear to three months from the date of the order, and otherwise
their demands were to receive no attention " unless the delay be shown to be
occasioned by a superior force." They knew that there was a law of the same
date bearing the approval of President Castro, one article of which defined the
losses which might be sustained before said junta, namely:
Losses during the war to private property not proceeding from hostile acts for
which no one is responsible, nor for the licentious conduct of soldiers who have
taken advantage of moments of contention, unless they have been made voluntarily,
intentionally, and deliberately by order of superior power in charge of belligerent
operation.
They knew that article 140 of the Venezuelan constitution contained this
important declaration:
International law is supplementary to national legislation; but it can never be
invoked against the provisions of this constitution and the individual rights which
it guarantees.
They knew that such laws and constitution were based on the principle of the
duty of nationals and aliens to obey the laws of the land wherein they dwell; that
there was no injury to person or property unless incurred in violation of the national law; that there was no remedy save in manner and means as provided by that
national law; that the alien had no recourse to the country of which he was a
subject except for the causes recognized by such national law; that the nation
whose subject he is has no right of intervention, except for causes prescribed by
the law of the nation where he is commorant or domiciled; that all this is a
AROA MINES
OPINION OF UMPIRE
435
right of each nation to prescribe, and of each alien within its domains scrupulously to obey, and of each mother country to respect, regard, and by it to be
controlled; that international law may aid, but can never control, dictate, or
determine any matter which is in conflict with its own statute law and the
national interpretation thereof; that whereas the generally accepted idea of
Europe and the United States of America is the supremacy of international law
in international matters, Venezuela and many of the other states of South and
Central America of kindred thought maintain the supremacy of their own laws
in international matters. They knew that before mixed commissions jurisdictional questions were always possible and might be frequent, and that
unrestricted by express agreement Venezuela was bound by her laws, organic
and other, to interpose objections jurisdictional to every claim not of the class
recognized as proper subject-matter of international intervention by her
constitution and her laws; that with unrestricted submission, among others,
these questions could always be raised, namely:
I. That every claim by an alien for damages and injuries to property and of
seizures thereof by national or state employees in time of peace or during the
civil wars would be objected to as not within the jurisdiction of the mixed
commissions until it had been heard before the junta provided and there had
been a clear denial of justice.
II. That in all cases of losses, damages, or injuries to persons or property or
seizure of the latter, not executed or caused by the legitimate authorities working
in their public character, there would have been a denial of all liability in any
manner at any time.
III. That in all cases otherwise admissible under the laws if the claim had
run two years before presentation it was barred by their statutes.
IV. That if contributions or forced loans or spoliation had been decreed or
caused by any one or more who were not of the public character required, the
party injured had only his remedy against him or them who had caused the loss
or injury.
V. That in cases arising on account of the war of 1899 there would be. also,
the claim that no case was within the jurisdiction, because of the time limit of
three months, except on proof that there had been the exception provided in
connection therewith.
VI. That losses to property during that war which might escape the other
objections would be met with the contention that such losses must not proceed
from hostile acts for which no one is responsible, nor from the licentious conduct
of soldiers who have taken advantage of moments of contention, nor are they
recoverable unless they have been made voluntarily, intentionally, and deliberately by order of superior power in charge of belligerent operations.
For an agreement to arbitrate among nations, as among individuals, is
simply a submission of all matters in dispute within the limits named, and there
would be jurisdiction, law, equity, and fact as applied to each case. The
admission of liability in the protocols prevented the raising of these objections.
They knew that these objections, which the umpire has stated as not only
possible but probable, had been, in fact, as a whole or in part during the correspondence interposed by Venezuela against the claims of Great Britain and
Germany, who together agreed upon the formula in question. (See Yellow
Book, pp.' 16, 50, 59, and 65.) l
i See Appendix to original report, pp. 959, 975, 979, 982. Not reproduced in
this series.
29
436
BRITISH-VENEZUELAN COMMISSION
The umpire assumes that these important treaties were not made without
great care and deliberation commensurate to their importance and by officials
who were thoroughly and conscientiously able and apt to perform their high
functions. In the Supreme Court of the United States of America, in the
matter of the Nereide (9 Cranch, 419), Chief Justice Marshall says:
Treaties are formed upon deliberate reflection. Diplomatic men read the public
treaties made by other nations and can not be supposed either to omit or insert an
article, common in public treaties, without being aware of the effect of such omission
or insertion.
The umpire feels confident that the careful review and partial rehearsal of the
conditions existing at the time of making these two protocols will convince the
most skeptical that the inclusion of the clause in question is not meaningless if
its interpretation is established in accordance with the previously expressed
opinion in the de Lemos 1 and Crossman 2 cases, and that to so hold leads to an
absurd conclusion.
But there are parallel or corollary provisions in the second protocol which in
the judgment of the umpire rest upon the same and no other grounds.
The commissioners, or in case of their disagreement the umpire, shall decide all
claims upon a basis of absolute equity without regard to objections of a technical nature
or of provisions of local legislation.
By a proper application of the usually accepted international law governing
such commissions, controlling courts, and defining the diplomatic conduct of
nations there could be no question that national laws must yield to the law of
nations if there was a conflict.
As a general rule municipal statutes expanding or contracting the law of nations
have no extraterritorial effect. (Wharton, vol. 3, sec. 403, p. 652, Digest.)
We hold that the international duty of the Queen's Government in this respect
was above and independent of the municipal laws of England. It was a sovereign
duty attaching to Great Britain as a sovereign power. The municipal law was but a
means of repressing or punishing individual wrongdoers; the law of nations was the
true and proper rule of duty for the Government. If the municipal laws were
defective, that was a domestic inconvenience, of concern only to the local government, and for it to remedy or not by suitable legislation as it pleased. But no sovereign power can rightfully plead the defects of its own domestic penal statutes as
justification or extenuation of an international wrong to another sovereign power.
(Mr. Fish, Sec. of State, to Mr. Motley, Sept. 25, 1869; Wharton's Digest, vol. 3, sec.
403, p. 653.)
This position was sustained by the eminent jurists forming the Geneva arbitral
tribunal. (See Wharton, vol. 3, sec. 402a, p. 645, Digest.)
The effect of the Salvadorean statute in question is to invest the officials of that
Government with sole discretion and exclusive authority to determine conclusively
all questions of American citizenship within their territory. This is in contravention of treaty right and the rules of international law and usage and would be an
abnegation of its sovereign duty toward its citizens in foreign lands, to which this
Government has never given consent.
Articles 39, 40, and 41, Chapter IV, of the law in question, purport to define the
conditions under which diplomatic intervention is permitted on behalf of foreigners
in Salvador whose national character is admitted. I regret that the Department is
unable to accept the principle of any of these articles without important qualifications.
(Mr. Bayard, Sec. of State, to Mr. Hall, Nov. 29, 1886. Wharton, vol. 3, Appendix,
sec. 172a, p. 960.)
i Supra, p. 368.
- Supra, pp. 356, 365.
AROA MINES
OPINION OF UMPIRE
437
It is a settled principle of international law that a sovereign can not be permitted
to set up one of his own municipal laws as a bar to a claim by a foreign sovereign for
a wrong done to the latter's subjects. fWharton, vol. 3, Appendix, sec. 238, p. 969.)
Similarly in Wharton, volume 3, Appendix, section 403, page 991.
In Phillimore, volume 1, Chapter [I, Section CXVII, it is said:
Under the rights incident to the equity of states as a member of an universal community is placed " the right of a state to afford protection to her lawful subjects
wheresoever commorant," and under this head may be considered the question of
debts due from the government of a state to the subjects of another state.
The definition of international law, making it under one form of expression
and another the rules which determine the general body of civilized states in
their dealings with one another, necessarily excludes state statutes from doing
the same thing.
They [aliens] are again, as we have seen, entitled to protection, and failure to
secure this, or any act of oppression may be a ground of complaint, or retorsion, or
even of war, on the part of their native country. (Woolsey's Intro, to Int. Law, p.
90, sec. 66.)
(See Hall, Int. Law, Chap. II; also Chap. VII, sec. 87.)
The right of states to give protection to their subjects abroad, to obtain redress
for them, to intervene in their behalf in a proper case, which generally accepted
public law always maintains, makes these municipal statutes under discussion
in direct contravention thereto and therefore inadmissible principles by those
states who hold to these general rules of international law.
A government has a right not only to exercise jurisdiction over all persons within
its territory, but also to see to the good treatment of its subjects when in the territory
of a foreign power, and generally that they sustain no injury. (Holland's Studies on
Int. Law, p. 160.)
It is not, I think, to be presumed that the British Parliament could intend to legislate as to the rights and liabilities of foreigners. (4 K. & J., p. 367.)
In Healthfield v. Chilton (4 Burr, 2016) Lord Mansfield held that the act of 7
Anne, c. 12, " did not intend to alter, nor can alter, the law of nations."
As " the law of nations " it is, of course, insusceptible of modification by an act of
the British Parliament. The act " can neither bestow upon this country any international right to which it would not otherwise be entitled, nor relieve our Government from any of its diplomatic responsibilities." (Holland's Studies in Int. Law,
p. 195; 3 Phillimore's Int. Law, p. 387.)
It is, on the other hand, quite certain that no act of Parliament, or decision given
in accordance with its provisions, will relieve this country from liability for any
results of the act, or decision, which may be injurious to the rights of other countries.
(Holland's Studies in Int. Law, p. 199.)
Referring to Venezuelan municipal laws by which they then sought to obviate
their international responsibility for the acts of turbulent factions or armed insurgents, Secretary of State Fish says: " To assume, therefore, to dictate that no claim
for such losses shall ever be made may be said to be arrogant to a degree likely to be
offensive to most governments having relations with a republic so subject to sudden
and violent changes in its authorities.
" Upon the whole, the enactments adverted to may be regarded as superfluous
in their substance, and in their form by no means adapted to foster confidence in the
good will of that government towards foreigners who may resort to Venezuela."
(See U. S. - Vene. Claims Com., Convention of 1892, p. 520.)
Municipal variations of the law of nations have no extraterritorial effect. (The
Resolution, 2 Dall., I ; the Nereide, 9 Cranch, p. 389.)
The municipal laws of one nation do not extend, in their operation, beyond its
own territory, except as regards its own citizens or subjects. (The Apollon, 9
Wheaton, p. 362.)
438
BRITISH-VENEZUELAN COMMISSION
Recurring then to the proposition made when the umpire referred to this part of
the second protocol, there seems to be adequate reason for this unusual provision
only in the fact that the respondent government held that its laws were paramount in such matters and would be expected to contend in behalf of its carefully conceived and tenaciously supported theory before the Mixed Commission,
and to prevent such contention and to prevent the possibility of a successful
contention this clause was inserted. A commission not in terms bound to follow
the law of nations might go astray over such a question if unrestricted, and
hence the restriction. But it is, equally with the other proposition, open to the
objection that, being in accord with public law, it had no place if there were not
some reason for its existence — if it did not contain some rule to govern this
Commission either not to be found in the precepts of international law or
directly opposed to it.
Again, there is the reservation concerning technical objections. The course
of commissions has rarely strayed from equity and justice by a too close adherence to technical objections, but there have been frequent interruptions and
costly delays because of such objections, and the astute and able lawyers of Venezuela had on several occasions shown their capacity to raise fine distinctions in fact
and law, resulting in long and eventually valueless discussion. The claimant
Government had known from experience how forcefully such objections could
be raised. It proposed to end that trouble at the beginning. Hence the
provision :
They shall be bound to receive and consider all written documents or statements
which may be presented to them by or on behalf of the Governments, respectively,
in support of or in answer to any claim.
And yet it had not been the practice of commissions in times past — and it is
not required by law writers — that there be a strict compliance with the
general requirements concerning evidence. But there had been much annoyance and many serious interruptions of the business of commissions and occasional
refusal to consider a case because of assumed lack of evidential quality in the
proof offered, and hence the provision. Yet neither of these last two provisions
were new or novel or opposed to the ordinary practice of commissions or the
generally varied rules of public law, but they did represent the views of the
claimant Government on those matters, and if inwritten were safe and wise
precautions against probable delays, and possible friction, misconception, and
misdirection of the tribunal. The law on these points was well laid down by the
eminent scholar, diplomat, and jurist, Judge J. C. Bancroft Davis, in the
Caldera case, 15 Court of Claims Reports (U. S. A.), 546:
In the means by which justice is to be attained, the court is freed from the technical rules of evidence imposed by the common law, and is permitted to ascertain
truth by any method which produces moral conviction.
In its wider and universal sense it [evidence] embraces all means by which any
alleged fact, the truth of which is submitted to examination, may be established or
disproved. (1 Greenleaf Ev., sec. 1.)
International tribunals are not bound by local restraints. They always exercise
great latitude in such matters (Meade's case, 2 Court of Claims, U. S. A., 271), and
give to affidavits, and sometimes even to unverified statements, the force of depositions.
The umpire desires it to be distinctly understood once for all that he accepts
the statement of the learned British agent that his Government thought the
terms of the protocol broad enough to include all injuries and all wrongful
seizures, whether caused by Venezuelan authorities or by insurgents. This
statement of his is not questioned directly or indirectly; but he does not say, and
AROA MINES
OPINION OF UMPIRE
439
it has not been said, that there were not also in the mind of his Government in
all of these provisions the protective and restrictive features here suggested. As
a matter of fact, these are the plain, obvious, and reasonable grounds for their
insertion, and there is not the slightest evidence which the umpire has been
able to find that Venezuela knew of any other, thought of any other, or consented to any other grounds or reasons. This is the important question, for when
there is found that which Venezuela or her representatives understood and
consented to and understood that they consented to then there is found all there
is of the treaty.
The position of all international law writers was in substantial accord
touching this matter of nonresponsibility of nations for the acts of unsuccessful
revolutionists at the time this protocol was signed, as was well known to the
parties to the protocols in question.
The sovereign is responsible to alien residents for injuries they receive in his
territories from belligerent action, or from insurgents whom he could control
or whom the claimant government has not recognized as belligerents.
The umpire will rest his quotations from text writers upon Hall on International Law, pages 231-232, where the law is laid down in the language which
follows :
When a government is temporarily unable to control the acts of private persons
within its dominions, owing to insurrection or civil commotion, is is not responsible
for injury which may be received by foreign subjects in their person or property in
the course of the struggle, either through the measures which it may be obliged to
take for the recovery of its authority or through acts done by the part of the population which has broken loose from control. When strangers enter a state they must
be prepared for the risks of intestine war, because the occurrence is one over which,
from the nature of the case, the government can have no control; and they can not
demand compensation for losses or injuries received, both because unless it can be
shown that a state is not reasonably well ordered, it is not bound to do more for foreigners than for its own subjects, and no government compensates its subjects for
losses or injuries suffered in the course of civil commotions, and because the highest
interests of the state itself are too deeply involved in the avoidance of such commotions to allow the supposition to be entertained that they have been caused by carelessness on its part, which would affect it with responsibility toward a foreign state.
In the opinion of Umpire Ralston, in the matter of Salvatore Sambiaggio v.
Venezuela,1 before the Italian-Venezuelan Mixed Claims Commission, now
sitting in Caracas, there is a valuable collocation of authorities upon this
point, to which opinion and the authorities there cited the umpire is pleased to
make reference, and, to quote the conclusions of Ralston, umpire, found on
pages 2 and 3 of his typewritten opinion :We find ourselves, therefore, obliged to conclude from the standpoint of general
principle that, save under the exceptional circumstances indicated, the Government
should not be held responsible for the acts of revolutionists, because —
1. Revolutionists are not the agents of government, and a natural responsibility
does not exist.
2. Their acts are committed to destroy the government, and no one should be
held responsible for the acts of an enemy attempting his life.
3. The revolutionists were beyond governmental control, and the Government
can not be held responsible for injuries committed by those who have escaped its
restraint.
1 Volume X of these Reports.
2
Italian - Venezuelan Commission (Sambiaggio Case) in Volume X of these
Reports.
440
BRITISH-VENEZUELAN COMMISSION
Held by Duffield, umpire in the German-Venezuelan Mixed Claims Commission, late sitting at Caracas:
That the late civil war in Venezuela from its onset " went beyond the power of the
Government to control. * * * Under such circumstances it would be contrary
to established principles of international law, and to justice and equity,
to hold the
Government responsible." (Claim of Otto Kummerow v. Venezuela.1)
The precedents form an unbroken line, so far as the umpire has been
favored with a chance to study them, supporting the usual nonresponsibility of
governments for the acts of unsuccessful rebels. It was so held by the eminent
Sir Edward Thornton in all cases which he decided as umpire in the United
States-Mexican Commission. (Moore, vol. 3. pp. 2977-2980.) So held by the
United States-Spanish Commission of 1871. (Moore, vol. 3, pp. 2981-2982.)
So held by the United States and British Claims Commission of 1871. (Moore,
vol. 3, pp. 2982-2987, 2989.) So held by the United States and Mexican
Claims Commission of 1859. (Moore, vol. 3, pp. 2972.) So held in principle
by the United States and Mexican Claims Commission of 1868. (Moore, vol. 3.
pp. 2900, 2902, 2973.) So held concerning
the nonresponsibility of the United
States in the civil war of 1861. (Moore,1"vol. 3, 2900-2901.) So held in substance and effect by
the United States-Venezuelan Mixed Commission now
sitting at Caracas.2 Even the cases which were claimed to qualify or oppose
this rule and were not specifically attacked by the umpire in the Sambiaggio
case above referred to are not opposed to the rule laid down when all of the
facts appear.
In the Easton case, before the Peruvian Claims Commission,3 careful
investigation discloses that the Government of Peru had acknowledged that
it was liable, in fact and law, to pay the actual loss, and had tendered $5,000 in
satisfaction thereof; so that the Commission had before it only the question of
amount.
In the case of the Venezuelan Steam Transportation Company against
Venezuela there were presented peculiar conditions, in that a pa,rt of the damage was inflicted by the " Blues " and part by the " Yellows. " The " Blues "
was the de jure government which had been driven from Caracas by the
" Yellows," but retained authority and control over certain States, among them
the State lying on the west of the Orinoco near Ciudad Bolivar, and, during the
happening of a great part of the injuries complained of, were in control of the
State of which Ciudad Bolivar is the capital. The " Yellows," being in possession of the national capital, were recognized as the de facto government. Mr.
Evarts. Secretary of State for the United States of America, a very eminent
lawyer, held that —
there seems to be just as good ground for taking the organization of the party of the
" Blues," so called, as the legitimate government at that time as the forces and
managers of the party of the " Yellows." (U. S. - Vene. Claims Commission, 1892,
pp. 516-517.)
For injuries inflicted by the " Yellows " the agent of the claimant government
asked for damages several times in excess of the entire amount of the award
given. Much of the damage claimed as inflicted by the " Blues " was placed
upon the de facto Government, the " Yellows," by said agent on the ground of
lack of diligence in permitting the " Blues " to remain so long at Ciudad
Bolivar and in control of the vessels in question, when they could have been so
1
Volume X of these Reports.
- Supra, p. 145.
3
Moore, p. 1629.
AROA MINES
OPINION OF UMPIRE
44 1
easily dislodged, as was proven when ihe effort was in fact made. The case can
not be held as authority for or against the general rule of international law on
this subject.
The umpire holds that this historical review emphasizes and strengthens at
every point the position taken by him in the cases of de Lemos 1 and Grossman 2
as to the meaning of the charging words used, interpreting the same from the
general purpose, plan, and purview of the protocol itself. It did not seem to
him, then, that there could possibly be any uncertainty concerning language
apparently so plain and unambiguous to which he gave the only meaning of
which it is susceptible in law.
From this review of the differences which arose between the claimant government it is found that the ultimatum contained no claim for injuries or damages
other than those well founded in law and fact. That Germany, its ally, speaking for
both, explained that under the language in question there was always the
necessity resting upon the claimant government of " intrinsic justification " in
each particular case; and that there was always to be decided the question of the
legality or illegality of the injuries or seizures complained of. And in silence and
tacit acquiescence passed on the statement of Germany, made in careful comparison of views, that its civil-war claims were for acts of violence committed by
Venezuelan authorities and her agents. That during the time covered by this
review in none of the correspondence or conferences of the allies with Venezuela,
or between the allies themselves, or of the allies or Venezuela with the United
States Government, or with Mr. Bowen, has the umpire been able to find a
sentence, a phrase, or a word directly or indirectly making claim to indemnity
for losses suffered through acts of insurgents or directly or indirectly making
allusion thereto.
The umpire finds that President Castro understood he was admitting the
liability of his Government only for such claims as were "just; " that Mr.
Bowen understood he was submitting 1o arbitration only the matters contained
in the ultimatum of each of the allied powers; that the claimant government
thought the terms of submission broad enough to include such claims or other
claims is not important when considered alone. It becomes important only
when it is established that the respondent government knew of and assented to
the submission of such claims. The review which has been made does not disclose to the umpire any such knowledge or assent. Rather, he finds not the
slightest hint that such a proposition could or would be made or was made to
the respondent government by the claimant government or by either of the
allied powers. Neither was there anything in the anterior diplomatic action or
attitude of the claimant government, or of Germany or of Italy, toward other
nations similarly constituted and conditioned, to suggest the possibility, even,
of such a claim upon the respondent government, but quite the contrary conclusion was to be drawn therefrom. Hence the umpire holds that the Government of Venezuela did not specifically agree in the protocols to be subject to
indemnities for the acts of insurgents.
This leaves the question of liability for the acts of insurgents to rest upon the
general principles governing such case.
In the opinion of the umpire it is stated with precision in the treaty of Germany with Colombia in 1892:
It is also stipulated between the contracting parties that the German Government
will not attempt to hold the Colombian Government responsible, unless there be
due want of diligence on the part of the Colombian authorities or their agents, for
Supra, p. 360.
Supra, p. 356.
442
BRITISH-VENEZUELAN COMMISSION
the injuries, oppressions, or extortions occasioned in time of insurrection or civil
war to German subjects in the territory of Colombia, through rebels, or caused by
savage tribes beyond the control of the Government. 1
It is also held that the want of due diligence must be made a part of the
claimant's case and be established by competent evidence. This is brought out
in the treaty of Italy with Colombia in 1892, where the language is " save in
the case ofproven want of due diligence on the part of the Colombian authorities
or their agents," and such a requirement is strictly in accord with the ordinary
rules of evidence.
If less inequity would result to all parties concerned were the British claims
allowed than if they were denied it might be necessary to allow them. Reference
to the treaties existing between many of the claimant countries and other South
American or Central American republics, and of Italy with Venezuela, will
settle the question of general equity and will demonstrate that it is only by
minimizing the use of the rule of responsibility that we can cause the least
inequity. It is, also, easily apparent that if wrong has been done in the cases of
Germany and of France it will not be righted by repeating it. The British
Government is not in fault because some government has asked and obtained
awards for such acts. Its foreign office carefully excluded all claims for acts of
revolutionists from the memorials to be presented to the Mixed Commission,
and thus prepared they were presented.
The learned British agent is frank and free to assert that his Government
preferred that there should be no award in any commission based on such a
claim. It is also as apparent as though stated that the British Government
expected there would be no such claim made or allowed in any commission.
Otherwise they would have admitted the revolutionary feature into their
reclamations in the first instance as, according to the learned British agent,
they considered such demands rightful to them if granted to any. Certainly,
i t is not the fault of the umpire of the British-Venezuelan Mixed Commission who
held in the de Lemos case that there was responsibility only for illegal acts by
the Government or some one acting in its behalf or under its order. It is not the
fault of the Italian-Venezuelan Mixed Commission, whose umpire settled the
question adversely to such claims before any opinion had been given favoring
such claims. The questions of equity by equality and equity by relation of
Venezuela to other governments were very strongly before the representatives
of the governments, who asked and obtained favorable rulings thereon after the
opinions opposed thereto had been declared and filed and after these very
governments had established the law and the equities to be in accordance with
such denial by their own solemn engagements with similarly ordered republics.
A broader view than is obtained within these ten mixed commissions may
well be taken before passing upon this question of equity by equality and by
relation. How stands the record? The countries hereinafter named have
treaties identical in principle with those of Germany and Colombia and Italy
and Colombia:
Italy-Venezuela, 1861 ; 2 Italy-Colombia, 1892; Spain-Venezuela, 1861;3
Spain-Ecuador, 1888; 4 Spain-Honduras, 1895; Belgium-Venezuela, 1884;5
Art. XX. (See British and Foreign State Papers, Vol. 84, p. 144.)
British and Foreign St. Papers, vol. 54, p. 1330.
Id., vol. 53, p. 1050.
Id., vol. 79, p. 632.
Id., vol. 75, p. 39.
AROA MINES
OPINION OF UMPIRE
1
2
443
France-Mexico, 1886; France-Colombia,
1892; Germany Mexico; San
Salvador-Venezuela, 1883.3
The learned British agent also raises the point that an international rule
applicable to " well-ordered States " in regard to the irresponsibility of governments for the acts of unsuccessful revolutionists may not be easily applied to
States possessing the history of the respondent Government.
Concerning this point the umpire is content to accept the concrete judgment,
practically uniform, of States whose skilled and trained diplomatists have given
this question long years of patient consideration. This concrete judgment he
has in the treaties made between Germany and Colombia and Italy and
Colombia heretofore quoted and between the other countries above cited, as
well as by the historic attitude of the British Government and the Government
of the United States of America in their diplomatic treatment of these question
in relation to countries having the same general characteristics, in this regard,
as Venezuela.
There now remains to consider only the " most favored-nation " proposition. Regarding this it is sufficient in the judgment of the umpire to say that
Venezuela has granted to no other country any favors in these protocols not
granted to the Government of His Britannic Majesty. He says this modestly,
but conscientiously, after careful study. He would avoid, if he could, the clash
in judgment this statement involves, but he can not do so and be true to his
solemn convictions. That there have been interpretations of several protocols
with which the present umpire can not agree and with which this opinion will
not accord, he admits to be true. But these interpretations were had and the
consequent results followed against the earnest protest and vigorous opposition
of the Government of Venezuela, and were therefore clearly not favors granted
by her.
In considering, determining, and applying the protocols to this case and to
all others; in weighing and settling the facts and the law in each case; in meeting
and answering every proposition connected with the proceedings of this Mixed
Commission the umpire must never lose sight of the most essential part of the
protocols which is none other than the solemn oath or declaration which it
prescribes. Before we were allowed to assume the functions of our high office
we were required by its provisions to make solemn agreement and declaration —
carefully to examine and impartially decide, according to justice and the provisions
of the protocol of the 13th February, 1903, and of the present agreement, all claims
submitted to them (us).
While the oath adds to the requirements of administering our trust according
to justice the provisions of the protocol, it is not to be presumed or admitted that
there is aught in either of those protocols which is contrary to or subversive
of its high and principal behest —justice. This, then, is the ultimate purpose and
required result of all our inquiries, examinations, and decisions. It is made, as
it should be made, the chief cornerstone of this arbitral structure. There is one
other and very important rule of action prescribed to govern us in our deliberations: it is that we " shall decide all claims upon a basis of absolute equity."
The way is equity, the end is justice. There is no other way and no other end
within the purview of the protocol. Not only must each particular case be
determined on these two bases, but each part of the protocols relating to this
Commission must be interpreted and construed in accordance therewith. If
there be two views of some provisions which, although differing, strike the mind
1 British and Foreign St. Papers, vol. 77, p. 1090.
2
Id., vol. 84, p. 137.
3
Id., vol. 74, p. 298.
444
BRITISH-VENEZUELAN COMMISSION
with equal force and there is a hesitancy which to adopt, the one must be taken
which best withstands the application of this supreme test. The protocols will
permit no construction of any part which in its adaptation may deviate from
the chosen path or lead to a conclusion at war with the required end. All and
every part thereof must be read and interpreted with this fact always predominant. If a question arises, not readily to be apprehended, wherein equity and
justice differentiate, then the former must yield, because the obligation of the
prescribed oath is the superior rule of action.
International law is not in terms invoked in these protocols, neither is it
renounced. But in the judgment of the umpire, since it is a part of the law of
the land of both Governments, and since it is the only definitive rule between
nations, it is the law of this tribunal interwoven in every line, word, and syllable
of the protocols, defining their meaning and illuminating the text; restraining,
impelling, and directing every act thereunder.
Webster thus defines equity:
Equality of rights; natural justice or right; * * * fairness in determination
of conflicting claims; impartiality.
Bouvier says in part:
In a more limited application, it denotes equal justice between contending parties. This is its moral signification, in reference to the rights of parties having conflicting claims; but applied to courts and their jurisdiction and proceedings it has
a more restrained and limited signification. (Vol. 1, p. 680.)
The phrase, " absolute equity," used in the protocols the umpire understands
and interprets to mean equity unrestrained by any artificial rules in its appliccation to the given case.
Since this is an international tribunal established by the agreement of nations
there can be no other law, in the opinion of the umpire, for its government than
the law of nations; and it is, indeed, scarcely necessary to say that the protocols
are to be interpreted and this tribunal governed by that law, for there is no
other; and that justice and equity are invoked and are to be paramount is not
in conflict with this position, for international law is assumed to conform to
justice and to be inspired by the principles of equity.
International law is founded upon natural reason and justice. * * * (VVharton, vol. 1, sec. 8, p. 32.)
The law of nations is the law of nature realized in the relations of separate political
communities. (Holland's Studies in Int. Law, 169.)
It is the necessary law of nations, because nations are bound by the law of nature
to observe it. It is termed by others the natural law of nations because it is obligatory upon them in point of conscience. (Kent's Com., vol. 1, 2.)
The end of the law of nations is the happiness and perfection of the general
society of mankind, etc. (Ib.)
International law * * * is a system of rules * * * not inconsistent with
the principles of natural justice. (Woolsey, Introd. to Int. Law, sees. 2 and 3.)
The rules of conduct regulating the intercourse of States. (Halleck, chap. 2,
sec. I.1)
The intercourse of nations, therefore, gives rise to international rights and duties,
and these require an international law for their regulation and enforcement. That
law is not enacted by the will of any common superior upon earth, but it is enacted
by the will of God; and is expressed in the consent, tacit or declared, of independent
nations. * * * Custom and usage, moreover, outwardly express the consent of
nations to things which are naturally — that is, by the law of God — binding upon
them. (Ib., sec. 6, quoting Phillimore, vol. 1, preface.)
That when international law has arisen by the free assent of those who enter into
certain arrangements, obedience to its provisions is as truly in accordance with
BOLl'VAR RAILWAY
OPINION OF UMPIRE
445
natural law — which requires the observance of contracts — as if natural law had
been intuitively discerned or revealed from Heaven, and no consent had been necessary at the outset. (Bouvier's Law Diet., vol. 1, p. 1102.)
The rules which determine the conduct of the general body of civilized States in
their dealings with one another. (Lawrence, Int. Law, sec. 1.)
International law consists in certain rules of conduct which modern civilized states
regard as being binding on them in their relations with one another with a force
comparable in nature and degree to that binding the conscientious person to obey
the laws of his country. (Hall, Int. Law, 1.)
In what has been stated I have referred exclusively to the international obligations imposed on the United States by the general principles of international law,
which are the only standards measuring our duty to the Government of Honduras.
(Mr. Bayard, Sec. of State, to Mr. Hall, Feb. 6, 1886.)
International law in its practical result guides, restricts, and restrains the
strong states, guards and protects the weak.
The guide, commonly safe and constant and usually to be followed, is international law. But if in the given case, not easily to be assumed, it should occur
that its precepts are opposed to justice, or lead away from it, or are in disregard
of it, or are inadequate or inapplicable, then the determination must be made
by recourse to the underlying principles of justice and equity applied as best
may be to the cause in hand. The umpire will apply the precepts of international law in all cases where such use will insure justice and equity for this
reason, if for no other — that well-defined principles and precepts which have
successfully endured the test of time and the crucible of experience and criticism
•ire safe in use, and should never carelessly be departed from in order that one
may step out into a way unknown to walk by a course unmarked. But these
precepts are to be used as a means to the end, which end is justice.
The rule of justice, equity, and law deduced by the umpire and to be applied
here is well expressed in the treaties of Germany and Italy with Colombia hereinbefore quoted. Adapted for our use, the rule will read as follows:
The Government of Venezuela will not be held liable to the British Government
for injuries to property or wrongful seizures thereof, or for damages, vexations, or
exactions committed upon or suffered by British subjects in Venezuela during any
unsuccessful! insurrection or civil war which has occurred in that countiy unless
there be proven fault or want of due diligence on the part of the Venezuelan authorities or their agents.
The Aroa mines supplementary claim is based wholly on the seizure of their
property by revolutionary troops without proof of any fault or lack of due diligence on the part of the titular and respondent Government.
Under the rule adopted this claim must be, and is hereby, disallowed, and
judgment will be entered to that effect.
BOLIVAR RAILWAY COMPANY CASE
A nation is responsible for the acts of a successful revolution from the time such
revolution began.1
PLUMLEY, Umpire:
When this claim came to the umpire on the disagreement of the honorable
commissioners, as to parts thereof there had been agreed to and allowed by the
commissioners the following amounts :
1
See also Supra, p. 119.